PESHAWAR, May 19: A two-member bench of the Peshawar High Court on Wednesday put the attorney-general of Pakistan and the NWFP advocate-general on notice in a writ petition challenging the detention of an Afghan journalist Sami Yousafzai and his driver Muhammad Saleem.

The bench, comprising Justice Tariq Pervez and Justice Tallat Qayyum Qureshi, directed the office concerned to fix the case for next week for further hearing. The bench observed that the attorney general and advocate general would clarify whether the detainees were in custody of the federal government or provincial government.

The petition is filed by Mr Abdullah, a paternal cousin of Sami Yousafzai, a correspondent of weekly Newsweek. The petitioners' counsel Kamran Arif contended that the detainees had disappeared on April 21 and their relatives came to know of their arrest near Bannu through newspapers.

Mr Arif, who was asked by the bench a day earlier to assist the court on the point whether a corps commander could be made party in a writ petition, argued that orders could be issued against the armed forces.

He cited various judgments of the superior courts, including that of Major Gen Zaheerul Islam Abbasi, in support of his contentions. He held that in different cases the superior courts had issued appropriate orders against the armed forces.

Article 199 of the Constitution, Mr Arif argued, was clear that only terms and conditions of service of armed forces could not be called into question before the high court. He added that when a question of enforcement of fundamental rights was involved then the corps commander and the armed forces could be made party in the petition.

The bench observed that first it would ascertain in whose custody the detainees were. The bench added that for that purpose notice would be issued to the attorney general and advocate general.

It was observed that once it was known to the bench in whose custody the detainees were, the court would decide about maintainability of the instant petition. The respondents in the petition are: The State through NWFP advocate general; Federation of Pakistan through Secretary, defence Division; and, Commander XI Corps, Pakistan Army.

The petitioner has prayed the court to direct the respondents to produce the detainees before the court. He further prayed to declare the arrest and detention of both the detainees without lawful authority and of no legal effect.

The petitioner has also sought interim relief, requesting the court to issue directives that the two detainees may not be removed from the territorial jurisdiction of the high court.

The petitioner stated that according to the newspaper reports on April 21, Sami Yousafzai along with US freelance journalist Eliza Griswold and their driver Muhammad Saleem (a Pakistani national) were detained at a military checkpoint near Bannu and taken for questioning. The lady was later on released after preliminary interrogation.