ISLAMABAD-The Islamabad High Court (IHC) Wednesday ordered to release Pakistan Tehreek-e-Insaf (PTI) leaders Shehryar Afridi and Shandana Gulzar while it also decided to indict the Deputy Commissioner and SSP Islamabad in this matter for contempt of the court.
A single bench of IHC comprising Justice Babar Sattar issued the directions while hearing two separate petitions moved by Shehryar Afridi and Sabahat Gulzar mother of Shandana Gulzar through their counsel Sher Afzal Khan Marwat Advocate challenging their arrest under 3 Maintenance of Public Order (MPO).
Justice Babar directed the police to release both the PTI leaders by suspending their impugned orders of arresting them till the next date of hearing. He directed, “The petitioner will lodge at his residence in Islamabad, subject to the condition that pending adjudication of this petition he will not leave the territorial jurisdiction of this Court without the permission of this Court nor will he be removed from the jurisdiction of this Court by any state authority due to any arrest in relation to any other matter.”
“While the adjudication of this matter is underway, the Inspector General of Police, Islamabad, and the Chief Commissioner Islamabad shall be personally responsible for the safety of the petitioner and shall ensure that he is able to attend the Court when the matter is fixed for hearing,” said the IHC bench. During the hearing, the counsel for the petitioner Afridi submitted that the basis for the impugned order is exactly the same as that in the order passed by the District Magistrate on 16.05.2023, which was set-aside by this Court for being illegal. He submitted that the malafide on part of the executive is writ large in view of the facts of the case.
He stated that previously on the basis of a source report issued at 02:30 a.m. in the morning, the District Magistrate had exercised his power under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (“MPO”), to order the detention of the petitioner as well as his wife. He added that the said detention of the petitioner’s wife was set-aside and subsequently the detention of the petitioner was also declared illegal by this Court.
The counsel stated that the sequence of events is such that seven orders under MPO have been passed against the petitioner and the dates of such detention orders co-relate to one another as if choreographed by one central authority. If they are viewed in a sequence they reflect a definite pattern: every subsequent detention order is passed on the date on which an order expires or is withdrawn or is set-aside by a court to ensure that the process of law is abused and the petitioner remains in detention.
He provided the dates of issuance of detention orders under MPO which include detention orders issued by Deputy Commissioner Rawalpindi, Deputy Commissioner Jehlum, Deputy Commissioner Kohat and Deputy Commissioner Islamabad. He further stated that the factual assertions made by the District Magistrate in Court as well as by the police officers that the petitioner was causing incitement of public-at-large while in detention in Adiala Jail are not true. The petitioner has been kept in jail for over 85-days and has not even been allowed to meet visitors according to his entitlement.
He also stated that he will file an affidavit stating that he is the only counsel who has met the petitioner in jail and the jail record can be solicited from Superintendent, Adiala Jail, Rawalpindi, to confirm that dozens of people did not come to meet the petitioner in Adiala Jail, who could have been incited by him, which incitement is purportedly the cause for issuance of a fresh detention order according to the District Magistrate Islamabad.
He further stated that the District Magistrate has not been delegated authority under Section 26 of the MPO to pass detention orders. And further that Supreme Court has held that even in case of delegation of authority, it remains for the Government to apply its mind on the basis of an opinion rendered by the District Magistrate under Section 3 of the MPO.
The District Magistrate appeared before the court and stated that he has acted on the basis of source reports generated by the Intelligence Bureau, Special Branch and requests initiated by the Station House Officer, Police Station Margalla, Islamabad, the Divisional Police Officer, City Zone, Islamabad and the Senior Superintendent of Police (Operations). He stated that all of these reports and requests are dated 08.08.2023 and were shared during a security meeting convened by him. He submitted that he relied on information provided by intelligence agencies and the requests made by the police, without seeking to verify such information, as the law enforcement agencies were his eyes and ears.
On court’s query as to whether all of the information came on the same day, which was the very next day after the day on which detention order under MPO issued in Rawalpindi was withdrawn, the District Magistrate stated that he would need further time to check record. When asked as to what material was placed before him on the basis of which he satisfied himself for purposes of Section 3 of the MPO that there existed a necessity to detain the petitioner, failing which there might emerge a threat to public safety on 08.08.2023, he stated that no additional material was placed before him or solicited by him.
The Inspector General of Police, Islamabad and the Senior Superintendent of Police (Operations) assisted by their learned counsel submitted that orders under the MPO are for purposes of prevention of emerging law and order situations and in such scenarios there often exists no concrete material or evidence, which can be adduced to establish that a real threat had actualized at the time when a preventive detention order was passed. They submitted that there are no other pending cases in which the police authorities seek the petitioner’s arrest.
The Assistant Superintendent, Adiala Jail, Rawalpindi, was in the court and stated that the Adiala Jail has the complete record of all individuals who met with the petitioner at the time when he was under detention in Adiala Jail and the same can be produced before the Court.
Then, the IHC bench directed the Superintendent Adiala Jail file a report alongwith date-wise details of all visitors who were granted an interview with the petitioner during the period of his detention.
It also directed the Deputy Commissioner Islamabad to file the relevant authorization issued by the Government for purposes of the MPO delegating to him authority under Section 26 of the MPO to pass detention orders in exercise of power under Section 3 of the MPO.
Justice Sattar further directed the Inspector General of Police, Islamabad, to file his own report with regard to the threat to public safety that caused officers under his command to generate a second request for the detention of the petitioner in jail, while he had already remained in preventive detention for over 85-days. He added, “Such report will be filed alongwith an affidavit signed by the Inspector General of Police, Islamabad, that any information being provided is true and correct to the best of his knowledge and belief.
He also directed the Chief Commissioner to file a report providing details regarding the detention orders that have been passed by the District Magistrate under his command alongwith copies of the orders, withdrawal of such order or the judicial pronouncements in relation to such orders in the event that they were challenged. The judge said, “Let him also state in the report whether authority has been delegated to the District Magistrate under Section 26 of the MPO to pass the detention order under Section 3 of the MPO, and a copy of such delegation order.”
Justice Sattar observed, “In view of the above, it prima facie appears that the impugned order has no basis in law. The District Magistrate’s fantastic assertion that the petitioner was inciting public-at-large in Islamabad, while he was behind bars in Adyala Jail and had been in detention for over 85 days strains credulity. It also impugns the efficacy of our prison system and projects MPO as a redundant tool should detenues continue to be able to incite public and threaten public order while under detention in jail.”
“It is also unclear whether or not the District Magistrate has been delegated authority under Section 26 of the MPO and consequently whether or not the impugned order suffers from jurisdictional defect. It also appears, prima facie, that the detention orders issued in Punjab, KP and Islamabad have been synchronized such that before or at the time of expiry, withdrawal or setting aside of a detention order, a subsequent order has been issued like clockwork to keep the petitioner in continuing detention,” added the judge.
He continued, “It also appears, in view of the report produced and the submissions of the District Magistrate, that he accepted the request for issuance of the order as the command of a superior and the expression of apprehension on part of police authorities regarding the petitioner being a threat to public order treated as Gospel, without independent application of mind before exercise of authority undermining the petitioner’s right to liberty guaranteed by Article 9 of the Constitution.
Later, the bench deferred the hearing till August 28 for further hearing.