LAHORE, March 3: The Supreme Court on Monday upheld the Lahore High Court verdict by which three members of the Khwaja family were ordered to be freed.
A division bench comprising Justice Javed Iqbal and Justice Faqir Muhammad Khokhar dismissed the state’s appeal challenging the release orders for Dr Umar Karrar, Dr Khizar Ali and Muhammad Usman, asking how could the state declare Al Qaeda a terrorist organization without issuing a special notification to this effect as an amendment to the Anti-Terrorism Act, 1997.
The high court had on Feb 17 ordered the release of two sons and a nephew of Dr Ahmad Javed Khwaja, detained under the Security of Pakistan Act, 1952, saying no solid evidence had been produced before it by the state. However, the court had disallowed the same relief to the two elder Khwajas.
The SC bench observed that since the material claimed to have been collected by the state against the three detainees for their alleged links with the Al Qaeda activists, was never produced before the high court it could not be assumed to be correct.
A detailed judgment would be issued later.Earlier, answering a question from Justice Khokhar, Deputy Attorney-General Sher Zaman Khan stated that Al Qaeda had not been declared a terrorist organization by the state under the Anti-Terrorism Act, 1997, through a special notification.
“Then, how would you term Al Qaeda a terrorist organization in Pakistan. Are you aware that the British government has issued a special notification for declaring it a terrorist organization?” asked Justice Khokhar.
The bench ruled that the state was bound to release the three Khwajas on Feb 17 following the LHC’s orders.
The bench refused to accept a deputy attorney-general’s offer for producing the confidential material against the Khwajas in their chamber. It also refused to entertain an argument by him that the documents constituting the alleged evidence could not be produced before the LHC owing to their sensitive nature.
“The state did not issue any notification for declaring these documents classified or secret and in the absence of such action, it cannot claim privilege before the LHC with regard to the production of material,” said Justice Khokhar.
In reply to a question from Justice Iqbal, the deputy attorney-general submitted that he would have to go through the material to see why the state had issued a joint order for five detainees (Ahmad Naveed, Dr Ahmad Javed, and three junior Khwajas), instead of issuing separate orders against each individual.
“This implies that tomorrow the state can order the detention of 5,000 people through a single order which is not the appropriate way,” commented Justice Iqbal.
Khwajas’ counsel Hamid Khan contended that the detention order had been passed by the federal government on Dec 30 just to frustrate the LHC’s orders for their production on Dec 31. He claimed that the detainees were kept in illegal confinement for 11 days and the deputy attorney-general’s submission before the Supreme Court in this regard was wrong.
