PESHAWAR: The Peshawar High Court has rejected a plea for the issuance of orders to produce human rights defender and political activist Mohammad Idress Khattak, who is in the custody of an intelligence agency, declaring it doesn’t have constitutional powers to do so as the detainee is being tried under the Army Act.

Justice Ikramullah Khan of a single-member bench observed that the focal person of the government as well as an additional advocate general had stated that Idress Khattak was in the military’s custody under Section 2(1)(d) of Pakistan Army Act, 1952, read with Section 3 of Official Secrets Act, 1923, and his trial by the relevant court was in process.

The petition was filed by Idress’s brother Owais Khattak, who said an official of the Military Intelligence on June 17 admitted before the Commission of Inquiry on Enforced Disappearances in Islamabad that Idress was in the agency’s custody and that he would be prosecuted under the Official Secrets Act, 1923.

The petitioner had requested the court to order his brother’s production and to determine legality of his arrest and detention by the Military Intelligence.

A habeas corpus petition filed against the disappearance of the rights defender was filed last year but it has been pending with the high court.

Declares it doesn’t have powers to issue such order

Hearing into it is scheduled to take place on July 24.

“As the detainee is an under-trial accused before the court constituted under the Army Act, this court is not allowed under the Constitution to make orders of production without any purpose and so fart as the involvement of the concerned accused and the legality or otherwise case registered against him under the Pakistan Army Act could be challenged before competent court of law, established under the Army Act,” the bench ruled.

Lawyers Abdul Lateef Afridi and Tariq Afghan appeared for the petitioner, while deputy attorney general Bilal Khan and additional advocate general Syed Qaiser Ali Shah represented the federal and KP governments, respectively.

Superintendent of the home department Arshad Ali also appeared before the bench.

Lateef Afridi and Tariq Afghan said Idress Khattak was a former provincial general secretary of National Party and had remained associated with some international human rights organisations.

They added that the detainee had studied in the erstwhile Soviet Union and held a PhD degree in anthropology from a Soviet university.

The lawyers pointed out that as their client had sent a letter to the Working Group on Enforced Disappearances, a UN body, in which the disappearance of Idress Khattak was highlighted, the respondent (MI) admitted after many months of his detention admitted before the CIED in Islamabad that the rights defender was in the intelligence agency’s custody.

They said that detention under the Official Secrets Act was illegal.

The counsel complained that trial of the detainee by a military court hadn’t begun and even a military court had no authority to conduct his trial.

They said Idress Khattak was picked up on Nov 13, 2019, from Swabi Toll Plaza near Peshawar-Islamabad Motorway along with the driver of a rented car, who was freed two days later.

The lawyers said the detainee had remained incommunicado until his whereabouts were disclosed before the CIED on June 17, which meant that he had been detained for more than seven months without the support of any court order.

They said the law, justice, equity and fairness demanded that the detainee be produced before the high court, where his case through the earlier petition had been pending, for examining the legality or otherwise of the prolonged detention.

Published in Dawn, July 17th, 2020