rom the Hafiz Mohammad Saeed detention case in the Supreme Court of Pakistan was driven by the fact that the PPP’s central government lacked substantial evidence against the Jamaatul Daawa (JuD) ameer Hafiz Mohammad Saeed to convince the court to allow his continued preventive detention, thus making it difficult for the right-wing Sharif government to yet again seek his house arrest for an indefinite period.
As a three-member Supreme Court bench, comprising of Chief Justice Iftikhar Mohammad Chaudhry, Justice Sair Ali and Justice Jawad Khawaja, was hearing two identical petitions filed by the federal and Punjab governments against the June 3 release of Hafiz Saeed by the Lahore High Court, the Advocate General Punjab Raza Farooq surprised everyone in the court room on July 15 by seeking withdrawal of the Punjab government’s appeal. Stating that it was not possible to pursue the petition on the basis of the evidence that the Punjab government had against Hafiz Saeed, the Advocate General said he had instructions from the provincial government to withdraw the petition. Despite the fact that the appeal does not stand withdrawn as of now, legal experts have a unanimous opinion that the federal government will have no other choice but to let this happen if the Punjab government so desires.
Six months after being placed under house arrest by the Punjab government [which was actually acting under the instructions of the federal government], the Lahore High Court ordered the release of Saeed, saying the authorities had failed to justify his detention under the Maintenance of Public Order (MPO). Mr A. K. Dogar, the counsel for the petitioner argued before the court that Hafiz Saeed cannot be detained only to please the Indian lobby on the false propaganda that he is involved in the Mumbai attacks - a bald allegation being leveled only to conceal the Indian security lapses.
Rejecting the government’s contention that Hafiz Mohammad Saeed had been put under house arrest due to his alleged al-Qaeda and Taliban links and that he should remain behind bars in the interest of Pakistan and for his own security, comprising Justice Ijaz Ahmad Chaudhry, Justice Hasnat Ahmad Khan and Justice Zubdatul Hussain ruled that the government has no evidence of Hafiz Saeed’s links with al-Qaeda or his involvement in any anti-state activity except for the Indian allegations that he had been involved in the 26/11 Mumbai terror attacks.
On May 30, 2009, hardly three days before the LHC verdict was announced, the Attorney General of Pakistan Latif Khosa had presented documentary evidence to the three-member Lahore High Court bench, linking the JuD to al-Qaeda and Taliban and pleading that the JuD ameer should remain under house arrest. Khosa further told the court that Hafiz Mohammad Saeed was detained after the United Nations declared his group a terrorist outfit in the wake of the Mumbai attacks. He pleaded that the action of the UNSC Sanctions Committee obliged the Pakistan government to act against the JUD leadership.
When the LHC judges did not agree with his contention and asked him whether the government had any independent evidence of its own, Latif Khosa met the three honourable judges privately and told them that one of the culprits involved in the Mumbai attack – Commander Zakiur Rehman Lakhvi - has known links with Hafiz Saeed. He pleaded that the lone surviving Mumbai attacker Ajmal Kasab has already admitted to being a Pakistani national and having been trained for the 26/11 attacks by Lakhvi, the LeT’s chief operational commander and a close associate of Hafiz Saeed. Latif Khosa then showed the judges what he claimed was independent evidence of the JuD’s links with al-Qaeda.
Interestingly, however, the LHC judges wanted to see a copy of the government notification under which the al-Qaeda had been declared a terrorist organisation. Two days later, on June 1, 2009, the Attorney General went back to the court and told the judges that the Pakistan government had not yet declared al-Qaeda a terrorist organisation. The court subsequently told the Attorney General if that was the case, Hafiz Saeed’s having links with al-Qaeda was no offence under the law of the land. The LHC released its detailed verdict on June 6, 2009, making public the grounds on which it had ordered the release of the JuD chief. One of the grounds said: “It would be relevant to mention here at this juncture that the security laws and anti-terrorism laws of Pakistan are so far silent about the fact that al-Qaeda was a terrorist organisation”.
The Lahore High Court judgment further added: “Even after the perusal of the documents presented by the government, we do not find any material declaring that Hafiz Saeed’s detention was necessary for the security of the petitioner and there was no evidence that the petitioner had any links with either al-Qaeda or any other terrorist movement. The material provided by the government to the court in chamber against petitioners was mostly based on reports of intelligence agencies which had been obtained after their detention, but even then, there was no solid evidence or source to supplement the reports”.
“As regard the contention of the Attorney General of Pakistan that the petitioners are being blamed to be involved in Mumbai attacks, not a single document was brought on the record showing that the JuD or the petitioners were ever involved in the incident. As far as the allegation in the UN resolution that Hafiz Saeed and Zaki Lakhvi had links with al-Qaeda, we have found that in the earlier judgment, as reported in Mamoona Saeed Vs the Government of Punjab etc (PLD 2007 Lahore 128), it was observed that there was no evidence against the JuD for its links with al-Qaeda”.
About the legality of the detention orders, the LHC bench observed as per Article 10 (5) of the Constitution, it was mandatory on the detaining authority to provide grounds for detention on which the order had been made within 15 days. However, the relevant authority made clear violation of explicit provisions of the Pakistani Constitution, which deprived the JuD petitioners from assailing their detention before the competent forum and also to know the allegations against them”.
Concluding the verdict, all three judges on the bench observed with a unanimous view that the writ petition in form of habeas corpus was maintainable as prima facie the Pakistan government had no sufficient grounds to detain the petitioners for preventive measures. “So far as resolution of the UN is concerned, there was no matter before this court about its vires and the federal government can act upon the same in letter in spirit, if so advised, but relying upon the same their detention cannot be maintained as it was even not desired thereby. Hence the writ petition is allowed and the impugned detention orders are quashed”, the three-member LHC bench had observed in its verdict.
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