Growing up amidst the company of men of the law was an interesting experience, even more interesting was the opportunity accorded to attempt a guess at and an assessment of the workings of their legal minds. The first lawyer I remember having met was my mother's uncle, Pestonjee H. J. Rustomjee, who was called to the Bar at the same time as his friend Mohammad Ali Jinnah.
Then there was my mother's other uncle, Dadiba Cursetjee Mehta, an additional judicial commissioner of the Sind judicial commissioner's court (as the High Court was then known). He lived in a government house on Club Road which he named after the trees abounding in the garden - Casurinas. (Later, when the house was occupied by Mohammad Hashim Gazdar the name was changed to Qasr-e-naz, Hashim having some difficulty in getting his tongue around the original name.) Dadiba once judged a 'sensitive' case involving a Hindu-Muslim dispute. After he had convicted the culprits, the government felt he needed protection. A solitary foot constable, armed with a Lee Enfield .303 single-barrelled rifle, was duly allotted the task - he was sufficiently armed for those days of peace and tranquillity.
Early last Sunday morning I was awoken by an irate former judge of our Supreme Court, Mamoon Kazi, who expressed his dismay at what I had written about him and the 1999 case of Najam Sethi and his bail application. I tried to calm him, and requested him to allow me to have my coffee, get to grips with the matter, and call him back.
The offending sentence, he told me, was: "Chief Justice Saeeduzzaman Siddiqui, sitting with Justices Mohammad Arif and Mamoon Kazi, spent three weeks wrangling with the attorney-general, persisting in asking for details of which laws, if any, Sethi had transgressed........".
The period of time, "three weeks," had upset him, and rightly so.
In his fourteen years on the bench, Judge Kazi told me, whenever a habeas corpus or bail application was presented to him he had always and invariably suspended all other work to take up the matter immediately and to pass orders within an hour of its presentation. I and many others who have had the good fortune to appear before him or of having witnessed him administering justice in the Sindh High Court and the Supreme Court can vouch for this well known fact.
He asked me to investigate, in detail, the Sethi case. This I did. Najam's wife, Jugnu, went to the Supreme Court in appeal (Crl.P 98/99) against an order handed down by the Lahore High Court. The appeal was heard on May 20, 1999, by Justices Saiduzzaman Siddiqui, Shaikh Ijaz Nisar, and Kamal Mansur Alam. The judgment was written the same day.
It opened up: "The petitioner moved the High Court ......... alleging illegal and wrongful detention of her husband Najam Sethi by the respondents [IGP Punjab and Others] and seeking his production before the Court. The respondents resisted the petition and took the plea that the husband of the petitioner was detained by the ISI under the provisions of the Army Act 1952 ..... and as such the High Court jurisdiction to entertain the petition was barred under clauses 3 and 5 of Article 1999 of the Constitution."
And the relief granted to the unlawfully detained Najam Sethi: "As we have refrained from passing the order of production of the petitioner's husband in court on account of objection by the learned attorney-general to the maintainability of proceedings by way of habeas corpus, we direct that the members of the family of detenu (his wife and children) will be allowed to meet him twice in a week. The counsel of the detenu may also be allowed to meet him along with the family members by the authorities if such a request is made. The detenu may also be provided one daily newspaper of his choice ....".
Realizing the value of this judgment, the learned judges very rightly protected themselves by the notation 'Not approved for reporting'.
Jugnu then went to the Supreme Court seeking bail for Najam. The application was heard on June 2, 1999, by a bench comprising Justices Saiduzzaman Siddiqui, Mamoon Kazi and Chaudhry Mohammad Arif (CMA 148/99 and CA 117/99, Jugnu Mohsin versus IG Police, Punjab and Others). Justice Kazi conducted the case and the order handed down the same day by the bench read:
"We have heard the bail application in this case at length. Today at 1.00 p.m. the learned attorney-general has placed before us a written statement signed by him on behalf of the state wherein he has stated that the detenue Najam Aziz Sethi, son of Abdul Aziz, who was detained in the case initially by ISI and was later taken into custody by the police, as a result of orders obtained from the Special Court on 1/6/99 in connection with the FIR registered at Kohsar Police Station, Islamabad, he has been set free. In view of the above statement, the bail application filed by the detenu has become infructuous which is disposed of accordingly."
"However, since the questions framed in the appeal are of public importance, the same will be heard after summer vacation. Date in office."
However, Justice Mamoon Kazi, exercising abundant caution, and knowing the propensity of the Nawaz Sharif government (as with all our governments) to do wrong, issued his own additional order:
"Upon statement made by the learned attorney-general today that the detenu, Najam Sethi, has been released from custody the bail application filed on his behalf by the petitioner has been disposed of by a short order. I would however like to add that it would be an absurdity if the detenu is re-arrested on the same charges which are now incorporated in the FIR said to have been lodged at PS Kohsar on 29/5/99. It may be pointed out that the said FIR which was lodged only two days before this appeal was to be heard by this court is a link in the chain of events which started with the arrest of the detenu on 8/5/99. The learned attorney-general has taken pains to defend this FIR which has not been filed by the government but by one MNA Inamullah Khan Niazi.
"Although I would not like to comment on the merits of this case, which is still pending hearing, but considering the circumstances in which the detenu was arrested and detained in custody for nearly a month without registration of any case against him, complete justice cannot be done to the detenu unless some restrictions are placed on the power of the respondents to re-arrest him in connection with the said FIR.
"The court under Article 187 of the Constitution is obliged to do complete justice to a party before it. Therefore it will be failing in its duty if no restrictions are placed on the respondents in this behalf. I therefore direct that if any further action in connection with the said case or the said FIR by re-arrest of the detenu is intended to be taken by the respondents, the same shall not be taken unless this court is first informed and such information is laid before the court for an appropriate order. The respondents shall be under obligation to issue such directions to the police or any other person who may be concerned with the case as may be necessary to give effect to this order."
Najam Sethi, who now edits two newspapers, as a public service and in the interests of all others who may in the future suffer as he did, should now record the exact details of what led up to his detention, the ordeals suffered whilst under detention, accurate details of the court cases and transcripts of the various orders handed down by the courts.
And lastly, if I have inadvertently incorrectly written, as I did in my column last Sunday, thus causing distress to a good and honourable judge of undoubted integrity, it is deeply regretted.