LAHORE, March 5: A division bench of the Lahore High Court upheld on Wednesday the verdict of an anti-terrorism court challenged by Dr Ahmad Javed Khwaja and his brother.

The ATC had approved provincial home department’s orders for Khwajas trial in jail.

Dismissing the petition filed by Dr Ahmad Javed Khwaja and his brother, Justices Tassadaq Hussain Jilani and Bashir A. Mujahid observed that the provincial home department and the ATC were authorized to hold the trial of the petitioners in jail.

In this case, the Khwajas have been accused of opening indiscriminate fire on the police party and harbouring Al Qaeda activists.

They had challenged their trial in jail, pleading only the court had the jurisdiction to do so and the executive (home department) could not pass directions in this regard.

“Though a trial conducted in avail of secrecy might offend the cannons of free trial and principles of justice, yet Section 5(2) of the Cr PC makes things clear in this regard,” the bench observed.

It further ruled that the provisions of Anti-Terrorism Act 1997, read along with those of Cr PC, specifically authorized both the government and the court to specify trial at places, including a cantonment area and jail premises.

The bench was of the view that the trial of the petitioners was being held in jail because of security reasons and does not impinge upon the independence of the judiciary.

According to the bench, the place of trial would not, in any manner, influence the working of the court which had already been authorized to specify such place.

It observed that the court could allow an “open trial in the jail premises” by permitting anybody to attend the proceedings. It rejected the offer of petitioners’ counsel Pervez Inayat Malik to withdraw the petition if the bench would direct the ATC to allow an open trial.

The case of Asif Ali Zardari, in which the court had disallowed his trial in jail, was not considered by the bench on the grounds that it was decided in 1992 under the provisions of the Suppression of Terrorist Activities Act, which did not provide for a trial in jail. “The section 15 of the ATA 1997, does allow the holding of trial in jail and, therefore, this case law stands irrelevant,” the bench observed.

Earlier, Punjab Advocate-General Syed Shabbar Raza Rizvi refuted the submissions of petitioners.

He pleaded that once the court had accorded permission for the trial in jail, it would be considered as the order of the trial court and not of the provincial home department and was not subject to the judicial review.

“Only a revision petition could be filed by the petitions instead of challenging such orders through a writ petition,” the AG submitted.

He argued that Section 15 of the ATA authorized the government to direct the holding of trial at any place, including the jail premises and a cantonment area. The order specifying the place of trial was not amenable to the judicial review since Section 15 of the ATA did not require the home department to disclose reasons for such order. Even the circumstances justifying the holding of the trial at a place other than court premises could only be decided by competent authority other then the trial court.

He claimed that the government, after reports that the production of Khwajas in open court would cause law and order situation, ordered their trial in jail.

The petitioners’ counsel argued that the impugned order did not specify any grounds justifying the trial of the Khwajas in jail.

The Khwajas were on bail and this order of the home department was allegedly issued to frustrate the trial court’s order regarding their production before it. Section 15 (2) of the ATA, under which the home department had used its discretion to pass orders for trial of the Khwajas in jail, was contravening to the independence of judiciary.