LAHORE, Feb 28: A division bench of the Supreme Court on Friday refused to accept the State’s plea regarding the suspension of three Khwaja family members’ release orders issued by the Lahore High Court.

Justice Javed Iqbal and Faqir Muhammad Khokhar, who heard the State appeal against the LHC’s verdict, said suspending the release orders of Dr Umar Karar, Dr Khizar Ali and Muhammad Usman from the detention imposed under the Security of Pakistan Act 1952, would be premature at this stage.

“We can’t suspend the orders on the basis of incomplete arguments of the deputy attorney general and without hearing the other party, especially in the matter involving the freedom of citizens, the bench members ruled before adjourning the proceedings for March 3.

DAG Sher Zaman Khan pleaded for the suspension of the release orders, saying such orders had given rise to certain ‘legal complications’ for the State. The LHC ordered the release of the three petitioners through a short order on February 17, but fresh detention orders under section 3-MPO were issued the same day against them, the DAG added.

He argued that by virtue of issuance of the fresh detention orders, the provincial home secretary had been arraigned in a contempt of court petition filed by the three Khwajas, making the whole matter complicated for the State.

“Although the fresh detention orders were passed in a legal manner and the three family members are still in the provincial government’s detention, if the contempt petition in the meanwhile is decided against the provincial home secretary by the LHC, it will create serious legal complications for the State” Mr Khan said.

The court, however, observed that it would not pass any orders on this matter without hearing Khwajas’ counsel Hamid Khan, who was not present there owing to his professional engagement in Islamabad.

Broaching his arguments earlier, the DAG raised three legal propositions in the court to be considered as to whether the judgement of the LHC was contradictory ordering the release of three people and upholding the detention of the other two arrested on the same charges, whether the LHC had followed the principles of judicial review as laid down in a judgment of the Supreme Court on the proclamation of emergency order of 1999, whether the LHC could record a finding on its own on the confidential material, which had never been produced before it.

As argued by the State, the LHC could only give an appraisal of the detention order passed by the federal government under the Security of Pakistan Act 1952. The question of sufficiency of evidence could not be examined by it, the DAG claimed.

The court observed that the State could have passed the detention orders under the Defence of Pakistan Ordinance, 1977, instead of issuing detentions orders under the 1952 Act. He, however, submitted that the 1952 Act was still alive and the detention orders could be passed under its provisions.

He was directed to update the court on the next hearing regarding the legal status of the 1952 Act.

The court also pointed out that section 3 of the 1952 Act, under which the 90-day detention orders had been passed, did not specify the term of detention. “The State will have to disclose under which law the 90-day detention had been specified and how did it satisfy itself in subjective terms regarding the involvement of the detainees in anti-state activities.”

Citing various judgements of the Supreme Court to support his argument, the DAG said the State was not bound to produce confidential material regarding the involvement of the detainees in anti-state activities in the open court. However, he said the State could produce such material in the judge’s chamber.

The State counsel said he would make a detailed submissions on the three propositions on the next hearing.