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ISLAMABAD: The Islamabad High Court (IHC) ordered to release Pakistan Tehreek-e-Insaf (PTI) leaders Shehryar Afridi and Shandana Gulzar, and decided to indict the deputy commissioner and SSP Islamabad in contempt of the court.

A single bench of Justice Babar Sattar, on Wednesday, heard two separate petitions moved by Shehryar Afridi and Sabahat Gulzar, mother of Shandana Gulzar, 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 (Afridi) will be lodged 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, advocate Afzal Khan Marwat, the petitioners’ counsel, argued 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 stated that previously on the basis of a source report issued at 02:30 am 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 Afridi and 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 the IHC.

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.

The District Magistrate, who appeared on the Court’s order, told 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.

The court questioned whether all the information came on the same day, which was the very next day after the day on which the detention order under MPO issued in Rawalpindi was withdrawn, the District Magistrate sought time to check the 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, the Magistrate responded 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 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 (Afridi) at the time when he was under detention in Adiala Jail and the same can be produced before the Court.

The IHC bench then directed the Superintendent Adiala Jail to file a report along with 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 authorisation 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 Babar 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 85days. He added, “Such report will be filed along with 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 along with 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 Babar said, “Prima facie it 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 the 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.” The case was adjourned until August 28.

Copyright Business Recorder, 2023

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