KARACHI, Jan 12: A division bench of the Sindh High Court heard arguments against maintainability of a petition challenging the confinement of 'doctor brothers' and adjourned further proceedings to Thursday.

Advocate-General Anwar Mansoor Khan argued that the detainees have failed to avail of the constitutional and statutory remedies. They could have filed representations against the inclusion of their names as confederates of the banned terrorist outfits and against the subsequent detention order under the Anti-Terrorist Act.

They could also have challenged their detention under Article 10(5) of the Constitution. However, they were not required to be produced before a magistrate under Article 10 (1). Without exhausting the remedies, they could not have invoked the high court's writ jurisdiction, the AG submitted.

The bench, which comprised Justices Ataur Rehman and Zia Pervez, observed that the notification of their names under Section 11-EE of the ATA and the detention order under Section 11-EEE were issued simultaneously on Dec 2, 2004, and they could not possibly have made a representation against the notification. Besides, a representation to the same authority or officer who had detained them could not be described as an appropriate remedy.

The AG said both the notification and the order could have been challenged by representation simultaneously. As for efficacy, he produced a list of people whose names were deleted from the ATA schedule following acceptance of their representations.

The notifications were based on information received by the government from a particular source or sources and the representations against them could give the government the other side of the picture and persuade it to review its decision.

The grounds for their detention, the AG said, were communicated to the detainees but the government was not bound to disclose facts or material which it acted on. The facts could be withheld even from the board constituted to review a person's detention if its period exceeded three months, he argued.

Meanwhile, the consideration of an application moved by Doctors Akmal Waheed and Arshad Waheed for transfer of the case against them being tried by anti-terrorism judge Feroz Mahmood Bhatti was put off to Janu 17. The application is to be considered by Chief Justice Saiyed Saeed Ashhad under the ATA provisions.