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Petitioner: Mrs. AMATUL JALIL KHAWAJA VS Respondent: FEDERATION OF PAKISTAN through Secretary JUDGMENT
Court Name: Lahore High Court Judge(s): M. Javed Buttar Title:Mrs. AMATUL JALIL KHAWAJA vs FEDERATION OF PAKISTAN through Secretary
JUDGMENT
Reported As: PLD 2003 Lahore 310 Result: Order accordingly Judgment JUDGMENT Writ Petition No,21605 of 2002 involving similar legal and factual issues is also being disposed of with this petition. 2. The petitioner Amat-ul-Jaleel Khawaja, through this Constitutional petition. Has assailed the detention orders dated 30-12-2002 passed by respondent No,1 against the following detenus:-- t i) Dr. Ahmed Javed Khawaja son of Muhammad Yunus. (ii) Dr. Umar Karar son of Dr. Ahmed Javed Khawaja. (iii) Dr. Khizar Ali son of Dr. Ahmed Javed Khawaja. (iv) Ahmed Naveed Khawaja son of Muhammad Yunus. (v) Muhammad Usman son of Ahmed Naveed Khawaja. The aforesaid detenus, hereinafter, are being referred through serial numbers mentioned above. 3. Detenu No,(i) is the husband of the petitioner, detenu No,(ii) and(iii) are sons of the petitioner, detetus, No,(iv) is brother-in-law of the petitioner being real brother of detenu No,(i) and detenu No,(v) is the nephew of the petitioner. 4. The petitioner previously instituted Writ Petition No,21605 of 2002, on 20-12-2002 assailing the arrest and detention of nine persons including four others who are no more under detention. It was alleged that during the night intervening 18th/19th of December, 2002 a large number of persons including some in police uniform, some in plain clothes and three foreigners, two males and one female, broke into the residences of detenu No,(i) and his two brothers, in the same premises, ordered the female inmates to remain within certain confined areas of the houses and took all nine male members present at that time including the above named five detenus, in their custody
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without rendering any explanation to the female members of the household, who were allegedly directed to keep shut and threatened with dire consequences. It was further alleged that whereabouts of the nine detenus was not known and there was every possibility, keeping in view the presence of the foreigners with the raiding party that these detenus are going to be removed outside the limits of territory of Pakistan, if immediate action is not taken for their recovery and presentation before the Court. The petitioner also stated in para. 19 of the petition that certain articles in these houses including certain papers and documents were removed illegally without any warrant or legal justification by the said raiding party. It was therefore. Prayed inter alia, that a direction may be issued to the respondents to produce the nine detenus and orders may be passed to set them free immediately. 5. The above said Writ Petition No,21605 of 2002 came up for hearing on 20-12-2002 when the learned Deputy Attorney-General as well as the learned Assistant Advocate-General, Punjab who were available on Court's call, were directed to seek instructions and render assistance on 24-12- 2002. On 24-12-2002, learned Advocate-General, Punjab, informed the Court that out of the nine persons, whose arrest and detention was challenged by the petitioner through Writ Petition No,21605 of 2002, four persons, who are not under detention now, had been released, under orders of Government of the Punjab by the Punjab Police. In regard to present detenus Nos.(i) and (iv) namely Dr. Ahmed Javed Khawaja and Dr. Ahmed Naveed Khawaja, it was submitted that they stand arrested in case F.I.R. No,412/2002 dated 19-12-2002. Registered at Police Station Munawa, District Lahore. For the offences under sections 324/353/148/149/186, P.P.C., section 7 of the Anti Terrorism Act, 1997 and section 13 of the Arms Ordinance, 1965 and the learned Anti-Terrorism Court, Lahore has given remand for three days. On 23-12-2002 ending on 26-12-2002. In regard to the detenus mentioned at Serial Nos.(ii), (iii) and (v), in paragraph two of this petition, namely, Dr. Umar Karar, Dr. Khizar All and Muhammad Usman, it was submitted by the learned Deputy Attorney-General for Pakistan and the learned Advocate-General, Punjab that they are, foreign nationals and are being investigated by one of the Federal Agencies. The learned counsel for the petitioner on the other hand submitted that the detenus, mentioned above, who are reportedly under investigation of a Federal Agency, are Pakistani nationals and it was apprehended that they shall be removed outside the jurisdiction of this Court and will be sent abroad in an illegal manner. The hearing of the petition was adjourned to 27-12-2002 with the direction that in,the meanwhile, the above said detenus mentioned at Serial Nos.(ii), (iii) and (v) shall not be removed beyond the jurisdiction of this Court and respondents Nos.1 and 4 were directed to submit detailed report and comments, in the meanwhile. On 27-12-2002, when the said petition came up for hearing, this Court observed that the learned Deputy Attorney-General has not been able to produce any order either of arrest or detention of the detenus mentioned at Serial Nos.(ii), (iii) and (v) namely Dr. Umar Karar, Dr.Khizar Ali and Muhammad Usman, who were allegedly with Federal Agency. They were therefore, directed to be produced in Court on 31-12-2002. On 31-12-2002, the learned Advocate- General. Punjab and the learned Deputy Attorney-General for Pakistan, produced copy of the impugned detention order dated 30-12-2002. Wherein it has been stated that all the five detenus mentioned above including the two involved in the aforesaid case F.I.R. No,402/2002, have been detained under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952). The Court was also informed that the above said three detenus, who were directed to be produced on 31-12-2002, have not been produced due to security measures and because they are under detention through a proper order. The matter was postponed to 3-1-2003. In the meanwhile, the petitioner instituted the present W.P. No,62 of 2003, challenging as mentioned above, the aforesaid orders dated 30-12-2002 passed by respondent No,1, which came up for hearing on 6-1- 2003 when the Advocate-General. Punjab was directed to render assistance on 7-1-2003. The proceedings thereafter were taken up in W.P. No,62 of 2003 and W.P. No,21605 of 2002 has merely
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been coming up for hearing along with W.P. No,62 of 2003. In my opinion, after the institution of W.P. No,62 of 2003 previous W.P. No,21605 of 2002, for all practical purposes, became infructuous and is accordingly disposed of. On 7-1-2003, respondents Nos. I and 2 were directed to furnish reply to the petition with detailed reports, within one week. It was further observed that the petitioner or the detenus may, in the meanwhile, make a representation to the concerned Authority assailing the detention orders and the hearing of the petition was adjourned to 15-1-2003. On 15-1-2003, learned counsel for the petitioner requested for a short adjournment as he needed time to scrutinize the report and comments, which in the meanwhile had been filed by respondents Nos.1 and 2, and if necessary, to file rejoinder to the same. The Court was also informed that in the meanwhile, the detenus had made representations to respondent No,1, therefore, learned Deputy Attorney-General for Pakistan was directed to obtain instructions in this regard and render assistance on the next date of hearing. The petitioner thereafter tiled rejoinder to the comments furnished by respondents Nos. 1 and 2. On 22-1-2003 the learned Deputy Attorney-General submitted that the relevant confidential file containing material against the &terms, was brought by an official on the last date of hearing for the perusal of the Court and the same was not available on this date and for this reason requested for a short adjournment to make the same available, on the next date of hearing. The hearing was thereafter postponed to 28-1-2003 and in the meanwhile, respondent No,1 was directed to proceed expeditiously with the representations of the detenus and decide the same before the next date of hearing. On 28-1-2003, the learned Deptuy Attorney-General produced a written statement dated 27-1-2003 on behalf of respondent No,1; the last paragraph of which shows that the representation filed by the detenus before respondent No,1 is not being decided because respondent No,1 (Secretary, Ministry of Interior) has become functus officio as the matter is subjudice in the Court of law. 6. I have heard the learned counsel for the parties and have also perused the parawise comments furnished by respondent No,1 and by respondent No,2 alongwith the annexures, including a report from Capital City Police Officer, Lahore. It may also be mentioned here besides the parawise comments respondent No,1 has also furnished two written statements respectively dated 27-1- 2003 and 3-2-2003. It is mentioned in these two statements, that the Ministry of Interior has sufficient incriminating evidence on record provided by the concerned Security Agency against the detenus, which is of highly sensitive nature and will be placed before the Review Board as referred to in clause (4) of Article 10 of the Constitution. Learned Deputy Attorney-General informed that for this reason the file containing the material against the detenus is being withheld and is not being produced before this Court. 7. The impugned detention Order No, 7/53/2002-S-HI, dated 30-12-2002, issued by Government of Pakistan, Ministry of Interior, also containing the memorandum of grounds of detention, for the sake of convenience is reproduced below:-- "Whereas the Federal Government has been informed that Messrs Khawaja Ahmed Naveed son of Haji Muhammad Younis, Khawaja Ahmed Naveed son of Haji Muhammad Younis, Dr.Khizar Ali Khawaja son of Dr.Ahmed Javed, Dr. Umar Karar Khawaja son of Dr. Khawaja Ahmed Javed and Muhammad Usman Khawaja son of Khawaja Ahmed Naveed, Pakistan Nationals are indulging in activities prejudicial to the Security of Pakistan. And whereas Federal Government is satisfied that detention of the above mentioned persons is essential. Now therefore, in exercise of the powers conferred by clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), the Federal Government is pleased to direct thatthe said named persons be detained in any jail in the Province of Punjab with immediate effect initially for a period of three months. (M. Irfan Kilan Jadoon),
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Section Officer (Police). MEMORANDUM OF GROUNDS OF DETENTION Whereas the Federal Government has made an order under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) directing that you be detained. Now therefore, in pursuance of section 6 of the said Act, you are hereby informed of the grounds on which the order has been made to enable you to make a representation in writing against the order. You are also informed that under the law you have a right of making such representation. The Federal Government is satisfied that you have been involved in anti-State activities in Pakistan on behalf of a Foreign Country/Organizations and., thus, your activities have been prejudicial to the security of Pakistan. Therefore with a view to preventing you from acting in such manner.You shall he detained in any jail in the Province of Punjab with immediate effect. (M. Irfan Kilan Jadoon), Section Officer (Police). 8. Respondent No,1 has replied paras. 2, 4 (viii), 6 and 7 of the writ petition as follows:-- Para. 2 M/s. Dr. Ahmed Javed Khawaja, Ahmed Naveed Khawaja, Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja have been detained on account their involvement in activities prejudicial to the security of Pakistan under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) vide Ministry of Interior's Order No,7/53/2002-SIII, dated 30th December, 2002 (copy annexed). Para. 4 (viii) The petitioner's contention is not based on facts. In fact the answering respondent had submitted a preliminary statement on 23rd December. 2002 and subsequently submitted parawise comments on 26th December, 2002 and another statement on 30th December. 2002 to the Hon'ble Court through Deputy Attorney General for Pakistan after obtaining required information from the concerned quarters. Para. 6 It was revealed through investigation that the Al-Qaida's most wanted terrorists were being harbored and facilitated at Manawan Compound owned by Dr. Ahmed Javed Khawaja and his family. The detainees evidences that they have contacts with following hard core terrorists:-- 1. (a) Abu Yasir Al-Jazairi, Algerian/Moroccan National (Responsible for Business of Al-Qaida). (b) Asadullah, Egyptian National (Member of al-Gamaat Al-. Islamia/AI-Qaida). (c) Sheikh Said Al-Misri, Egyptian National (Financial Chief of AlQaida). (d) Abu Faraj (Head of al-Qaida North Africa network and Deputy of Khalid Sheikh Muhammad). 2 Following foreign travel documents recovered from their clearly prove that Khawaja's family was involved in facilitating and harbouring AI-Qaida elements. (i) Sudani Passports. 3 (ii) Egyption Passports 3 (iii) Afghani Passport 1 3 Foreign currencies of U.S.A., Saudia, Afghanistan, Iran and U.A.E. Were also recovered from their possession. Para. 7 Denied. An order for their detention has been issued under the relevant law after collecting evidence as mentioned above. 9. Respondent No,2, in its parawise comments has mainly relied on the report No,217 dated 13-1- 2003 submitted by the Capital City Police Officer, Lahore to the Provincial Police Officer, Punjab. Lahore which reads as follows:--
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REPORT On the night of 19-12-2002 an information regarding tiring by some unknown persons outside a house at G.T. Road was received by the Manawan Police through Emergency 15. On this information, S.H.O., P.S. Manawan alongwith his staff rushed to the spot and apprehended Dr. Ahmed Javed Khawaja, (2) Ahmed Naveed Khawaja, (3) Hassan Ahmed, (4) Muhammad Ali, (5) Ahmed Nadeem and (6) Muhammad Farooq. A pistol 30 bore alongwith 10 bullets was recovered from the possession of Dr. Ahmed Javed Khawaja and Kalashnikov alongwith 10 bullets from Ahmed Naveed Khawaja, which were taken into possession. 10 empties of pistol .30 bore and 15 empties of Kalashnikov were also taken into possession from the spot. Accordingly, a case vide F.I.R. No,412 of 2002, dated 19-12-2002 under sections 324/353/148/149/186, P.P.C. Read with section 13(1)(20)65, A.O. And 7, A.T.A. Was registered at P.S. Manawan, Lahore. Investigation of the case was conducted by Inspector Baqar Hussain Incharge Investigation (Crime against person). During investigation sufficient evidence was not available against Hassan Ahmed, Muhammad Ali, Ahmed Nadeem and Muhammad Farooq, who were released on executing bail bonds under section 169, Cr.P.C. However, Dr. Ahmed Javed Khawaja and Ahmed Naveed Khawaja were arrested in the above mentioned case. They remained on physical remand for six days. During interrogation Dr. Ahmed Javed Khawaja and .Dr. Ahmed Naveed Khawaja made the following disclosures:-- (i) Ahmed Naveed Khawaja disclosed that he visited Afghanistan in 1998 and met Abu Yasir Egypt National and Abdul Aziz Saudi national and worked there for the purpose of Jehad. Ahmed Javed Khawaja also visited Afghanistan and provided medical facility to the injured Mujahideen. (ii) An Egyptian lady alongwith 6 children and a Sudani woman alongwith 4 children wives of Abdul Aziz (a Sudani national and an active member of Al-Qaida) were living in their house. (iii) The said women and children were left there after the incident of 11th September, 2001 by Abdul Aziz and Abu Yasir, both members of Al-Qaida. (iv) Abdul Aziz and Abu Yasir had been visiting the house of the accused after every 10/15 days regularly and providing the necessities of life to the foreigner women/children. 3. On 26-12-2002, the accused were produced before the Court for obtaining their further physical remand however, request for further physical remand was declined by the Court. During investigation the accused were found guilty of having relations with Al-Qaida Organization, providing accommodation to the active members of Al-Qaida. Consequently, section 11-V, A.T.A. Was also added vide Case Diary No,9 dated 27-12-2002. After completion of investigation challan of the case has been submitted in the Court of competent jurisdiction for trial. PARAWISE COMMENTS Para 1--3.Calls for no comments. Para. 4(i-iii),The factual position has been explained in the above report. (iv) Dr. Ahmed Khawaja and Ahmed Naved Khawaja were found guilty of having relations with Al- Qaida, providing accommodation to the active members of Al-Qaida, assaulting Police and keeping illicit weapons in their possession. Accordingly they have been challaned in case F.I.R. No,412 of 2000, P.S. Manawan. (v) It is correct that the petitioner earlier tiled Writ Petition No,21605 of 2002 in the Hon'ble Court. (vi) First part of this para calls for no comments being matter of record. Rest of the para is denied being incorrect. The factual position has been elaborated in the above report. (vii) and (viii) Calls for no comments being matter of record. Para. 5 It is correct that the Federal Government has issued detention order against the detenus under section 3 of Security of Pakistan Act, 1952 on 30th December. 2002. Para. 6 Calls for no comments being matter of record. GROUNDS
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(a-e) These paras do not relate to the answering respondent, hence no comments. (f) Calls for no comments. (g) The detention order was passed by the Federal Government. Hence no comments. Para. 7 Legal: hence no comments. (Sd.) Capital City Police Officer, Lahore. 10. The only other material, besides parawise comments of respondents Nos.1 and 1 which is being relied upon by the learned counsel representing the respondents is the statements on behalf of respondent No,1 dated 27-1-2003 and 3-2-2003, produced before this Court. During the pendency of this writ petition, which for the purpose of convenience are reproduced below:--- STATEMENT DATED 27-1-2003 "It is submitted that M/s. Dr. Ahmed Javed Khawaja (son of Haji Muhammad Younas), Ahmed Naveed Khawaja (son of Haji Muhammad Younas), Dr.Khizar Ali Khawaja (son of Dr. Ahmed Javed Khawaja), Dr. Umar Karar Khawaja (son of Dr. Ahmed Javed Khawaja), Muhammad Usman Khawaja (son of Mr.Ahmed Naveed Khawaja) have been detained on account of their activities prejudicial to the Security of Pakistan under clause (b), subsection (1) of section 3 of Security of Pakistan Act. 1952. The Ministry of Interior has sufficient incriminating evidence on record provided by the concerned Security Agency against the accused persons. The evidence is of highly sensitive nature and will be placed before the Review Board, as referred to in clause (4) of Article 10 of the Constitution. As regards representation filed by the detenus before the Secretary, Ministry of Interior, it is stated that it has become functus officio (frozen) being subjudiced in the Court of law." STATEMENT DATED 3-2-2003. "It is submitted that M/s. Dr. Ahmed Javed Khawaja (son of Haji Muhammad Younas), Ahmed Naveed Khawaja (son of Haji Muhammad Younas), Dr.Khizar Ali Khawaja (son of Dr. Ahmed Javed Khawaja), Dr. Umar Karar Khawaja (son of Dr. Ahmed laved Khawaja), Muhammad Usman Khawaja (son of Mr.Ahmed Naveed Khawaja) have been detained on account of their activities prejudicial to the Security of Pakistan under clause (b) subsection (1) of section 3 of Security of Pakistan Act, 1952. The Ministry of Interior has sufficient incriminating evidence on record provided by the concerned Security Agency against the accused persons. The competent authority (i,e, Secretary. Ministry of Interior) has reiterated that the evidence is of highly sensitive nature and will be placed before the Review Board, as referred to in clause (4) of Article 10 of the Constitution." 11. Mr. Hamid Khan, Advocate, learned counsel for the petitioner submitted that the detenus at Serial Nos.(i) and (iv) namely, Dr. Ahmed Javed Khawaja and Ahmed Naveed Khawaja stand involved in crime case F.I.R. No,412 of 2002, they were granted bail by the learned Anti-Terrorism Court on 30-12-2002, the other detenus are not accused in the aforesaid F.1.R., according to the aforesaid F.I.R., at the time of the raid, the police party never entered the premises/residences of the detenus whereas the stand of respondent No,1/Federal Government is that while conducting the raid the police party entered the houses of the detenus. Reference in this regard was made to paras. 5. 14 and 19 of the parawise comments furnished by respondent No,1, to W.P. No,21605 of 2002 wherein it has been stated that "the raid was conducted for arresting such Pakistani and foreign nationals who were suspected to be involved in anti-State activities". "The arrest of the detenus was necessary for the security of the country", and "The search of the house was necessary for the recovery of the any suspected material," that the F.I.R. Does not account for detenus mentioned at Sr.Nos.(ii),(iii) and (v), that this Court on 27-12-2002, ordered the production of the aforesaid
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detenus before the Court on 31-12-2002 but the order was not obeyed, as the aforesaid detenus were not produced before the Court due to the security reasons, that the impugned detention order narrates that Federal Government was informed that the detenus being Pakistani Nationals were indulging in the activities prejudicial to the security of Pakistan and in the memorandum of grounds of detention it is narrated that they were involved in anti-State Activities in Pakistan on behalf of foreign Country/Organizations but no such incriminating material has been produced by respondent No,1, the parawise comments on behalf of respondent No,1 are also merely bald allegations not supported by any material, paragraph 6 of the same vaguely refers to Dr.Ahmed Javed Khawaja and his family without even naming the said family members including the other detenus, respondent No,2, on the other hand, has merely relied upon the report dated 13-1-2003 of the Capital City Police Officer which shows that some incident of tiring took place outside a house at G.T. Road, consequently F.1.R. No,412 of 2002 dated 19-12-2002, referred above. Was registered and due to lack of sufficient evidence during investigation of the same F.I.R., Hassan Ahmed, Muhammad Ali, Ahmed Nadeem and Muhammad Farooq were released on executing bail bonds under section 169, Cr.P.C. And only Dr.Ahmed Javed Khawaja and Ahmed Naveed Khawaja, the detenus mentioned at Sr.Nos.(i) and (iv) were found to be prima facie involved and were thus proceeded against and arrested in the above said crime case, the said report refers to some disclosures made by Dr.Ahmed Javed Khawaja and Ahmed Naveed Khawaja during the interrogation and there is nothing against the detenus at Sr.Nos.(ii),(iii) and (v). That whatever material is allegedly available with respondents Nos.1 and 2. Is based on the investigation of a criminal case, that the Federal Government in its parawise comments has referred to the recovery of some Passports, foreign currency of U.S.A. Saudia. Afghanistan and U.A.E but the Provincial Government does, not speak of any such recoveries, that the disclosures made by respondents Nos.1 and 2 through their parawise comments show that all the material which is being used by respondent No,1 against the detenus, is based upon the disclosures made by Dr.Ahmed Javed Khawaja and Ahmed Naveed Khawaja, during interrogation of the aforesaid case F.I.R, No,412 of 2002, which in police custody and therefore, respondent No,1 had no independent material before hand with it to pass the impugned order of detention, that the representations dated 11-1-2003 of the detenus before respondent No,1 assailing the impugned detention order have illegally not been decided on the alleged ground that the matter is subjudice in the Court of law although while hearing both these petitions, this Court specifically directed respondent No,1 on 22-1-2003 to proceed with the representations expeditiously and decide the same before 28-1-2003, the stand taken by respondent No,1 in this regard therefore, does not make any sense. That the file containing the alleged material against the detenus has been deliberately withheld and has not been produced before this Court in an adamant manner which can lead to only one conclusion that respondent No,1 is of the view that the material collected against the detenus cannot stand on its legs, that Ahmed Naveed Khawaja never visited Afghanistan in year 1998 as alleged, that Dr.Ahmed Javed Khawaja visited Afghanistan with a team of Doctors only on humanitarian grounds,…
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