LAHORE, Feb 3: The federal government on Monday expressed reservations about placing evidence against the detained “Khwaja family members” before the Lahore High Court, saying the latter did not have the jurisdiction of being appraised of such sensitive material.
On the contrary, the petitioners’ counsel argued that the alleged confessional statements of the five detainees had no legal recognition since, under the law, a confession made before a police officer was not admissible.
The state had earlier refused to produce a confidential file containing incriminating evidence against Dr Ahmad Javed Khwaja and others regarding their alleged links to Al Qaeda activists before the court declaring it highly sensitive.
“We have reservations about producing the incriminating material before court. Rather would like to place it before a review board,” submitted the Deputy Attorney-General, Sher Zaman Khan. The DAG further argued that being a constitutional court, the LHC had no jurisdiction to be appraised of the evidence against Dr Ahmad Javed Khwaja and four others detained. According to the State counsel, only a review board had the jurisdiction of scrutinizing merits of the impugned evidence.
A written statement of the interior ministry was also furnished with the court reading as “the interior secretary reiterates that evidence is highly sensitive and would be produced before the review board under clause 4 of Article 10, of the Constitution.
Justice M. Javed Buttar, raised the question how could the State hint at producing the matter before the board which did not even exist? The judge made it clear to the State that it would not be allowed to argue its case beyond the scope of reports filed by both the federal and provincial governments on the detention, and the detention orders passed on Dec 30, 2002. “The State cannot be allowed to rely on the confidential material which has neither been made available to the court nor presumably to its counsel, since considering this material would amount to gross dishonesty on my part,” observed the court.
The DAG was on his legs when further proceedings were adjourned for Tuesday (today).
Earlier, petitioners’ counsel Advocate Hamid Khan, while resuming his arguments on the main petition said that the State did not have any incriminating material with it at the time of the arrests made from Manawan area on Dec 19, 2002. Whatever had been allegedly gathered against the accused, came out during investigations, he submitted.
According to the counsel, the allegations of the established links with Al Qaeda were based on certain alleged confessions which could be the result of coercion and influence exercised on the detainees during their 11-day illegal custody.
The counsel contended that under Article 38 of the Qanoon-i- Shahadat, any confession made before a police officer during interrogation would not constitute evidence. Such confessions could not be relied upon since the police could arrest anybody and attribute a confessional statement to him without any legal justification, he argued.
There was nothing on record to confirm that prior to the Khwajas’ arrest, the State had satisfied itself regarding their alleged support to Al Qaeda activists.
He claimed that the three detainees — Dr Umar Karar, Dr Khizar Ali, Muhammad Usman — had not been implicated specifically either in the FIR or the reports of the two governments filed with regards to the grounds of their detention. The use of the phrase: “Dr Ahmad Javed Khwaja and family members” in the reports was not sufficient to establish the connivance of the three detainees since it would also include the female family members as well, pointed out the counsel.