ISLAMABAD: Citing tremendous global implication and grave emergency as well as serious consequences, the top government lawyer on Monday requested the Supreme Court to suspend the Dec 24, 2020, Sindh High Court (SHC) order in the murder of Wall Street Journal’s South Asia bureau chief Daniel Pearl.

Attorney General (AG) Khalid Jawed Khan appeared before a three-judge SC bench, headed by Justice Umar Ata Bandial, to highlight that the high court had barred the federal government from issuing any preventive detention order when there was a mandatory requirement to issue notice and hear the AG before issuing such orders.

The Supreme Court, however, preferred to maintain the status quo for a day instead of granting any stay against the SHC order in which the federal and provincial governments were directed not to issue any preventive detention order without prior permission of the high court.

The high court had also directed that all the accused — Ahmed Omar Saeed Sheikh, Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil — be released from jail forthwith on the receipt of this order unless they were wanted in any other custody case.

On Jan 28, by a majority of two to one, the Supreme Court had also ordered the release of Omar Sheikh by extending the benefit of doubt as well as other co-accused if they were not wanted in any other case.

But soon after the apex court’s short order, the Sindh government moved a review petition challenging the verdict and the federal government and the parents of Daniel Pearl also announced that they would move similar review petitions soon.

The SHC had through its Dec 24 order held that the June 29, 2020 notification placing all the accused on the Fourth Schedule of Anti Terrorism Act (ATA) 1997 pursuant to Section 11-EE was without lawful authority, adding that none of the accused were “enemy aliens” as contemplated under Article 10(9) of the Constitution and as such their detention under this provision was found to be illegal and without lawful.

On Monday, Justice Bandial observed that the apex court wanted to understand what the law suggested in this regard and postponed the hearing to Tuesday.

In the appeal before the Supreme Court, the Sindh government, through the advocate general for Sindh, as well as the additional chief secretary, inspector general of Sindh and senior superintendents of Karachi and Sukkur jails pleaded that the government had lawful authority to place the names of the accused on the Fourth Schedule of ATA, adding that the third preventive detention order of Sept 28, 2020 was not violative of Articles 2A, 4, 9, 10(A), 14, 15 and 25 of the Constitution.

The Sindh government argued that the high court had passed the Dec 24 order in clear disregard of the provisions of the Constitution, the West Pakistan Maintenance of Public Order Ordinance 1960 (MPO), ATA and in particular the established principles of the executive discretion in matters concerning national security, public policy, integrity and defence of the country.

It contended that the high court also failed to take into consideration that while issuing the detention order of the accused, the Sindh government acted purely in the interest, security and defence of the country. The powers conferred upon the Sindh government under Section 3 of the MPO and Section 11-EE of the ATA were exercised on the basis of a strong apprehension and suspicion after having satisfied itself with the information, intelligence and material received from credible sources, it added.

The appeal said the high court also failed to appreciate that the correct approach in issuing preventive detention order in matters relating to offences, particularly terrorism and anti-state activities, was of subjective satisfaction as mandated by Section 3 of the MPO and Section 11-EE of the ATA.

The Sindh government pleaded that the high court also failed to consider that the detention orders were issued with the consultation of the officials who had been trained in intelligence gathering, evaluation of secret information and deduction on the basis of such information. “It is after this process that the detention order is issued by a detaining authority,” it contended.

Published in Dawn, February 2nd, 2021