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Petitioner: Mrs. Amatul Jalil Khawaja VS Respondent: Federation Of Pakistan And Other
Court Name: Lahore High Court Judge(s): M. Javed Buttar Title: Mrs. Amatul Jalil Khawaja vs Federation Of Pakistan And Other Case No.: Writ Petition No. 62 of 2003 Date of Judgment:2003-02-17 Reported As: K.L.R. 2003 Criminal Cases 97 Result: Petition Partly Allowed
JUDGMENT
JUDGMENT M. JAVED BUTTAR, J.~ Writ Petition No. 21605 of 2002 involving similar legal and factual issues is also being disposed of with this petition. 2. The petitioner Aniat-ul-Jaleel Khawaja, through this Constitutional petition, has assailed the detention orders dated 30.12.2002 passed by respondent No. 1 against the following detenues:- (i) Dr. Ahmed Javed Khawaja s/o Muhammad Yunus. (ii) "Dr. Umar Karar s/o Dr. Ahmed Javed Khawaja. (iii) Dr. Khizar AM s/o Dr. Ahmed Javed Khawaja. (iv) Ahmed Naveed Khawaja s/o Muhammad Yunus. (v) Muhammad Usman s/o Ahmed Naveed Khawaja. The aforesaid detenues, hereinafter, are being referred through serial numbers mentioned above. 3. Detenue No. (i) is the husband of the petitioner, detenues Nos. (ii) and (iii) are sons of the petitioner, detune No. (iv) is brother-in-law of the petitioner being real brother of detenue No. (i) and detenue 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, lt was alleged that during the night Investigating 18th/19th of December, 2002 a large number of persons
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including some ln police uniform, some in plain clothes and three foreigners, two males and one female, broke into the residences of detenue 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 i.e detenues, in their custody without rendering any explanation to the female members of the household, who were allegedly directed to keep shut and threatened with dire consequences, lt was further alleged that whereabouts of the nine detenues was not known and there was every possibility, keeping in view the presence of the foreigners with the raiding party, that these detenues 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 detenues and orders may be passed to set them free immediately. 5. The abovesaid 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 detenues Nos. (i) and (iv) namely Dr. Ahmed Javed Khawaja and Dr. Ahmed Naveed Khawaja, it was submitted that they stand arrested in case FIR No. 412/2002, dated 19.12.2002, registered at Police Station Manawan, District Lahore, for the offences under Sections 324/353/148/149/186, PPC, 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 days7i on 23.12.2002 ending on 26.12.2002. In regard to the detenues mentioned at Sr. Nos. (ii), (iii) and (v), in paragraph two of this petition, namely, Dr. Umar Karar, Dr. Khizar Ali 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 had submitted that the detenues, 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 abovesaid detenues mentioned at Sr. 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 detenues mentioned at Sr. 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 i.e detenues mentioned above including the two involved in the aforesaid case PIR 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 abovesaid three detenues, 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
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proper order. The matter was postponed to 3.1.2003. Ln 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 wee taken-up in W.P. No. 62 of 2003 and W.P. No. 21605 of 2002 has merely been coming-up for hearing along with W.P. No. 62 of 2003. Ln my opinion, after the institution of W.P. No. 62 of 2003 previous W.P. No. 21605/2002, for all practical purposes, became infructuous and is accordingly disposed of. On 7.1.2003, respondents Nos. 1 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 detenues 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 i.e rejoinder to the same. The Court was also informed that in the meanwhile, the detenues 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 filed 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 i.e containing material against the detenues, 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 o^ haring. 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*detenues and decide the same before the next date of hearing. On 28.1.2003, the learned Deputy 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 detenues before respondent No. 1 is not being decided because respondent No. 1 (Secretary, Ministry of Interior) has become functus officio as the matter is sub judice in the Court of law. 6. I have heard the learned counsel for the parties and have also perused the para wise comments furnished by respondent No. 1 and by respondent No. 2 along with the annexures, including a report form Capital City Police Officer, Lahore. It may also be mentioned here besides the para wise 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 oh record provided by the concerned Security Agency against the detenues* which is of highly sensitive nature and will be placed before the Review Board as referred to in clause roof's Article 10 of the Constitution. learned Deputy Attorney General informed that for this reason the i.e containing the material against the detenues is being withheld and is not being produced before this Court. 7. 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 M/s. Khawaja Ahmed Naveed s/o Haji Muhammad Younis, Khawaja Ahmed Naveed s/o Haji Muhammad Younis, Dr. Khizar Ali Khawaja s/o Dr. Ahmed Javed, Dr. Umar Karar Khawaja s/o Dr. Khawaja Ahmed Javed and Muhammad Usman Khawaja s/o Khawaja Ahmed Naveed, Pakistan nationals are indulging in activities prejudicial to the Security of Pakistan.
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And whereas Federal Government is satisfied that detention of the above-mentioned person is essential, NOW, THEREFORE, in exercise of the powers conferred by clause (b) of sub-section (1) of Section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), the Federal Government is pleased to direct that the 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) Section Officer (Police). MEMORANDUM OF GROUNDS OF DETENTION. WHEREAS the Federal Government has made an order clause (b) of sub-section (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 arid, 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 be 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 (iii), 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 of their involved in activities prejudicial to the security of Pakistan under clause (b) of sub-section (1) of Section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) vide Ministry of Interior's Order No. 7/53/2002-S-III, 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 para- wise comments on 26th December, 2002 and another statement on 30th December, 2002 tc the Hon'ble Court through Deputy Attorney General for Pakistan after obtaining required information from the concerned quarters. Para 6 lt was revealed through investigation that the Al- Qaida's most wanted terrorists were being harboured and facilitated at Manawan Compound owned by Dr. Ahmed Javed Khawaja and his family. The detainees evidence that they have contacts with following had core terrorists:-
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(1) (a) Abu Yasir Al-Jazairi, . Algerian/Moroccan National (Responsible for Business of Al-Qaida). (b) Assadullah, Egyptian National (Member of Al- Gamat AI-Islamic/AI-Qaida). (c) Sheikh Said Al-Messer, Egyptian National (Financial Chief of Al-Qaida). (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 Al-Qaida elements. (i) Sudani Passports. 3 (ii) Egyptian Passports 3 (iii) Afghani Passport 1 (3) Foreign currencies of USA, Saudia, Afghanistan, Iran and UAE 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 para-wise 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:- REPORTS; On the night of 19.12.2002 an information regarding firing by some unknown persons outside a house at G.T. Road was received by the Manawana Police through Emergency' 15. On this information, SHO, PS Manawan along with his staff rushed to the spot and apprehended Dr. Ahmed Javed Khawaja,. (2) Ahmed Naveed Khawaja, (3) Hassan Ahmed, (12) Muhammad Ali, (5) Ahmed Nadeem and (6) Muhammad Faruq. A pistol 30 bore along with 10 bullets was recovered from the possession of Dr. Ahmed ]ayed Khawaja and Kalashnikov along with 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 FIR No. 412/2002, dated 19.12.2002 under Sections 324/353/148/149/186, PPC read with Section "13(1 )(20)/65, AO and 7, ATA was registered at PS Manawan, Lahore. Investigation of the case was conducted by Inspector Baqar Hussain In charge Investigation (Crime against person). During investigation sufficient evidence was not available against Hassan Ahmed, Muhammad Ali, Ahmed Nadeem and Muhammad Faruq, 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 along with 6 children and a Sudani woman along with 4 children wives of Abdul Aziz (a, Sudani national and an active member of A1 Qaida) were living inn their house. (iii) The said women and children were left there after the incident of 11 th September, 2001 by.
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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, ATA 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. PARAW1SE 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 Javed Khawaja and Ahmed Naveed, 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 FIR No. 412/2002, PS Manawan. (v) lt is correct that the petitioner earlier filed Writ Petition No. 21605/2002 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 SC viii) Calls for no comments being matter of record. Para 5 lt 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: (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 para wise comments of respondents Nos. 1 and 2, 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. "lt is submitted that M/s. Dr. Ahmed Javed Khawaja (s/o Haji Muhammad Younas), Ahmed Naveed
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Khawaja (s/o Haji Muhammad Younas), Dr. Khizar A.H Khawaja (s/o Dr. Ahmed Javed Khawaja),' Muhammad Usman Khawaja (s/o Mr. Ahmed Naveed Khawaja), Dr. Umar Karar Khawaja (s/o Dr. Ahmed Javed Khawaja) have been detained on account of their activities prejudicial to the Security of Pakistan under clause (b) sub-section (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 detenues before the Secretary, Ministry-of Interior, it is satisfied that it has become functus officio (frozen) being subjudicial in the Court of law." STATEMENT DATED 3.2.2003 "It is submitted that M/s. Dr. Ahmed Javed Khawaja (s/o Haji Muhammad Younas), Ahmed Naveed Khawaja (s/o Dr. Ahmed Javed Khawaja?), Dr. Khizar Ali Khawaja (s/o Dr. Ahmed Javed Khawaja), Muhammad Usman Khawaja (s/o Mr. Ahmed Naveed Khawaja) have been detained on account of their activities prejudicial to the Security of Pakistan under clause (b), sub-section (1) of Section 3 of the 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 Sr. Nos. (i) and (iv), namely, Dr. Ahmed ]ayed Khawaja and Ahmed Naveed Khawaja stand involved in crime case FIR No. 412/2002, they were granted bail by the learned Anti-Terrorism Court on 30.12.2002, the other detenues are not accused in the aforesaid FIR, according to the aforesaid FIR, at the time of the raid, the police party never entered the premises/residences of , the detenues whereas the stand of respondent No. 1 /Federal Government is that while conducting the raid the police party entered the houses of the detenues. Reference in this regard was made to paras 5, 14 and 19 the para wise comments furnished by respondent No. 1, to W.P. No. 21605/2002 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 any suspected material," that the FIR does not account for detenues mentioned at Sr. Nos. (ii), (iii) and (v), that this Court on 27.12.2Q02, ordered the production of the aforesaid detenues before the Court on 31.12.2002 but the order was not obeyed, as the aforesaid detenues were not produced before the Court due to the security reasons, that the impugned detention order' narrates that Federal Government was informed that the detenues 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 para wise comments on behalf of respondent No. 1 are also merely bald allegations, not supported by any material, paragraph 6 of the same vaguely referees to Dr. Ahmed Javed Khawaja and his family without even naming the said family members including the other detenues, respondent No. 2, on the other had, has merely relied upon the report dated 13.1.2003 of the Capital City Police Officer which shows that some incident of firing took place outside a house at G.T. Road, consequently FIR No. 412/2002, dated 19.12.2002, referred above, was registered and due to lack of sufficient evidence during investigation of the same FIR, Hassan Ahmed, Muhammad AH, Ahmed Nadeem and Muhammad Faruq were released on executing bail
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bonds under section 169, Cr.P.C, and only Dr, Ahmed Javed Khawaja and Ahmed Naveed Khawaja, the detenues 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 disclosers 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 para wise 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 para wise comments show that all the material which is being used by respondent No. 1 against the detenues, is based upon the disclosures made by Dr. Ahmed Javed Khawaja and Ahmed Naveed Khawaja, during interrogation of the aforesaid case FIR No. 412/2002, while in police custody and therefore, respondent No. 1 had no independent material before had, with it to pass the impugned order of detention, that the representations dated 11.1.2003 of the detenues before respondent No. 1 assailing the impugned detention order have illegally not been decided on the alleged ground that the matter is sub judice 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 i.e containing the alleged material inst the detenues 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 the year 1998 as alleged, that Dr. Ahmed Javed Khawaja visited Afghanistan with a team of Doctors only on humanitarian grounds, the allegations of…
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