KARACHI: High Court declares detention illegal: Victim to get compensation
By Our Staff Reporter
KARACHI, April 30: A division bench of the Sindh High Court on Wednesday declared illegal and void the detention of a Pakistani American under the Foreigners Act, 1946, and asked the provincial government to pay him a compensatory fine of Rs 60,000.
The detainee, Haris Hasan, returned to Pakistan in February 2002, with his parents and was taken into custody the following May under the MPO Ordinance.
In July, he was detained under the Extradition Act, 1972, following an extradition request by the US embassy for alleged offences committed by him in Detroit (Michigan), US, before his return.
After a prolonged preliminary inquiry under the 1972 Act, a judicial magistrate exonerated him on April 9, as there was no prima facie case against him.
On April 16, the division bench, which consisted of Justices Sabihuddin Ahmed and S. Ali Aslam Jafri, ordered his release but the jail authorities informed petitioner Nadir Hasan, Haris’ father, that he had been detained under the Foreigners Act for three months and could not, therefore, be freed.
Contempt proceedings were instituted against Karachi Central Prison superintendent Rashid Saeed and deputy superintendent Nazeer Ahmed. They tendered their apologies but also justified their conduct under the home department notifications in respect of detainees held under the Foreigners Act.
The contempt case was also fixed for hearing on Wednesday but the bench put off the framing of the charge to May 8 as the alleged contemners had already approached the Supreme Court against the contempt proceedings.
The detainee is unlikely to benefit from Wednesday’s order as the federal ministry of interior has challenged the judicial magistrate’s discharge order in the Sindh High Court.
A division bench, comprising Justices Mohammad Roshan Essani and Khilji Arif Hussain, suspended the discharge order on Tuesday and Haris Hasan has reverted to the pre-April 9 position wherein he was held under the Extradition Act.
Justices Ahmed and Jaferi observed in their order of Wednesday held that the provincial government would be free to recover the amount of compensatory fine (Rs 60,000) from its officers or officials who passed the unlawful detention order under the Foreigners Act on April 16.
The bench pointed out earlier in the course of proceedings that a foreigner, a status denied by detainee Haris Hasan, could be deported but not detained. He could be detained for a while only to ensure and facilitate his deportation.
When the bench observed that there apparently was no security reason for Haris’s incarceration, Advocate-General Anwar Mansoor Khan broadly hinted that there were certain matters he could not discuss in open court.
The AG said the detainee and his parents had renounced their Pakistani nationality before acquiring US nationality. He came to Pakistan in February 2002 on a visa obtained from the Pakistan embassy in Washington. He could at best be described a US citizen of Pakistani origin, who could be dealt with under the Foreigners Act.
Advocate Saeeduddin Nasir, appearing for petitioner Nadir Hasan, submitted that Haris was born in Pakistan and was taken to the US by his parents in 1980 when he was only two months old. By a notification issued in August 2002, the federal government allowed dual nationality to naturalized Americans of Pakistani origin. There was an elaborate procedure for renouncing Pakistani citizenship under the Citizenship Act of 1951 and Haris could not be deprived of his Pakistani nationality without following it.
The lawyer said Haris could not be arrested or detained under the Foreigners Act, even for repatriation. Extradition proceedings were conducted for his extradition to the US as a Pakistani. But when he was exonerated of all charges, he was being treated as a foreigner and being ostensibly detained for repatriation under the Foreigners Act. The two positions taken by the authorities were mutually contradictory and the detention order was mala fide and aimed at defeating the court order for his release. Even a valid order under the Foreigners’ Act could not provide for more than 60 days’ detention.
The impugned detention order was illegal and unconstitutional and liable to be quashed, Advocate Saeeduddin Nasir further submitted.
