The Sindh High Court (SHC) on Monday struck down the prevention detention order of a proscribed organisation’s activist who was acquitted in the Pakistan Industrial Development Corporation (PIDC) car bombing case in April this year. The high court, however, allowed the Sindh government to monitor activities of the man under the anti-terrorism law.
The order came on a petition of Aziza Naeem who challenged the detention of her son-in-law Abdul Hameed Bugti under the anti-terrorism law. She had submitted in her petition that her son-in-law remained incarcerated in prison for his alleged involvement in the PIDC car bombing case for the last 14 years and he was exonerated by the SHC on April 9 due to lack of evidence. However, the prison authorities refused to release him and first detained him under the Maintenance of Public Order and later under 11-EEE of the anti-terrorism law.
The Sindh government had opposed the petition and submitted that the detention was ordered by the home department after intelligence agencies’ reports as the petitioner’s son-in-law was affiliated with the proscribed Balochistan Liberation Army and constitutional rights provided under the Article 10 of the constitution to the accused shall not be provided to the suspect as the detainee was time being an ‘enemy alien’.
The Sindh advocate general had argued before the court that the country was at war against terrorism after the Army Public School incident in December 2014 and the home secretary was authorised to issue a preventive detention order of the suspect affiliated with the banned anti-state organisation.
Issuing the detailed judgment on the petition, a division bench of the SHC headed by Justice Mohammad Karim Khan Agha observed that the petitioner’s son-in-law, being a Pakistani national living in the country whilst Pakistan was not in a declared war, did not fall within the definition of ‘enemy alien’ as used in the Article 10 (9) of the constitution and his detention under such law was unlawful and in violation of the constitution.
The high court observed that the mala fide conduct on part of the government of Sindh was highly deprecated as a person could not be detained under the preventive detention without legal justification. The bench observed that issuing successive preventive detention orders of the detainee on unjustified grounds just to keep a person in prison despite his acquittal by the courts only served to undermine and lessen confidence in the criminal justice system in the eyes of the public and lead to a perception that the principles of equality and fair play were not being held and the rule of the law, which the country so cherished, was being compromised by the executive authority.
The SHC observed that during the challenging times, the courts must ensure the constitutional guarantees/protection provided to the citizens of the country through the constitution and protect them from any misuse or abuse of the executive authority especially when the liberty of the individual was at stake, which was one of the most important fundamental rights guaranteed by the constitution.
The bench observed that without a jealous protection of the liberty of the citizens and other fundamental rights by the courts, we were nowhere both as a state and a citizen of the state, and the road to anarchy and tyranny would not be far away in that case.
Regarding the Sindh government’s stance that the country was at war and detention was justified, the high court observed that the country was passing through challenging times but it was not at war, rather it was having to deal with the scourge of terrorism and militancy like many other countries and the country had passed appropriate laws to deal with such miscreants.
The bench further held that in the current situation, neither was Pakistan involved in any declared international armed conflict nor had the country declared any internal armed conflict which might lead to the combatants having the benefit of at least some parts of the Geneva Convention regarding the laws and customs of war.
The SHC observed that the country was fighting groups which could be described as insurgents, terrorists or militants mainly of internal nature which the state’s security forces were ably dealing with.
The high court held that in such so-called war on terror, it was a careful and fine balance between ensuring the security of the state and at the same time ensuring civil liberties and rights of the citizens of the state that were guaranteed and protected by the constitution. The SHC observed that it was role of the judiciary to jealously safeguard the country’s citizens from the executive abuse or overreach of power in such times.
The bench, however, upheld the notification of the home department under 11 EE of the anti-terrorism law to monitor the activities of the detainee and directed the detainee to provide two sureties of Rs2.5 million each to the Nazir of the court as well as his residential address and contact number to the home secretary who shall inform him about which police station he had to report to in order to ensure compliance with the notification.
The SHC ordered that the petitioner may not be detained under any further preventive detention either by the federal or provincial governments or any other law enforcement agency without permission of the court.
The SHC had on April 9 dismissed the appeals of two convicts and upheld their death sentence in the PIDC car bombing case. It, however, had set aside the death sentence of third convict Abdul Hameed Bugti and acquitted him of charges as no evidence had been found against him.
Abdul Aziz Baloch, Mangla Khan and Abdul Hameed Bugti were sentenced to death by an anti-terrorism court in Karachi that found them guilty of car bombing outside the PIDC building on November 15, 2005.
Four people were killed and 21 others were wounded after a bomb exploded in a car (ACB-490) parked outside the PIDC building during the morning rush hour on November 15, 2005. The explosion also caused damage to a fast-food outlet, bank branches on the ground floor and offices on upper floors, besides several parked vehicles.
According to the prosecution, absconding co-accused Sardar Brahimdakh Bugti, the grandson of the late Bugti chieftain Nawab Akbar Khan Bugti, had tasked the three with executing the bomb explosion outside the Pakistan Petroleum Limited office as the PPL was not giving jobs to their people.