Mst. SHAHEENA NARGIS vs DISTRICT POLICE OFFICER, BAHAWALNAGAR and another
This matter comes before the Lahore High Court through a habeas corpus petition filed under Section 491 of the Code of Criminal Procedure 1898 by Mst. Shaheena Nargis, challenging the preventive detention of her husband, Muhammad Zafar Iqbal, ordered by the Home Department under Section 11-EEE of the Anti-Terrorism Act, 1997. The core legal question is whether the detention of a person under Section 11-EEE is lawful when the authorities fail to establish that the detenu's name is included in the list referred to in Section 11-EE of the statute. The Court holds that an order of detention under Section 11-EEE can only be made if the individual's name is included in the list referred to in Section 11-EE. Because the respondents failed to produce any record or notification showing the detenu's inclusion in the Fourth Schedule or any involvement in a case, the detention is declared illegal and without lawful authority. The key principle laid down is that fulfillment of the statutory prerequisite of inclusion in the Section 11-EE list is mandatory for sustaining a preventive detention order under Section 11-EEE of the Anti-Terrorism Act, 1997.
- Can a person be detained under Section 11-EEE of the Anti-Terrorism Act 1997 without their name being included in the list referred to in Section 11-EE?
- Whether a detention order passed under Section 11-EEE of the Anti-Terrorism Act 1997 is lawful in the absence of any record showing the detenu's involvement in a case?
- Does the Anti-Terrorism Act 1997 contain any provision providing for an appeal or representation against a detention order?
- Section 491, Code of Criminal Procedure 1898
- Section 11-EEE, Anti-Terrorism Act 1997
- Section 11-EE, Anti-Terrorism Act 1997
- Section 25, Anti-Terrorism Act 1997
ORDER
Through this petition under Section 491, Cr.P.C. Mst. Shaheena Nargis petitioner. has challenged the arrest and detention of her husband Muhammad Zafar Iqbal son of Allah Ditta in District Jail, Bahawalnagar caused by the District Police Officer, Bahawalnagar under the orders of the Secretary to the Government of the Punjab, Home Department, dated 30th July, 2005 under Section 11-EEE of the Anti-Terrorism Act, 1997. The petitioner previously instituted Writ Petition No 2893 of 2005 which came up for hearing on 31-8-2005 before my learned brother Muhammad Jehangir Arshad, J. who after hearing parties and examining the record came to the conclusion that there was no justification in the detention orders. However, he was pleased to refer the matter to the Secretary, Government of Punjab, Law Department, with a direction to place the matter before the competent authority to see the feasibility of conferring powers of hearing and, deciding representation in such-like matters by some independent authority other than the one who has passed the detention order.
2. The learned A.A.-G. was directed to seek instruction from the District Police Officer, Bahawalnagar and produce the entire previous record of the alleged detenu. Ghulam Ahmad, D.S.P. Legal, 13ahawalnagar has placed a report of the Incharge Security Branch, office of District Police Officer, Bahawalnagar. According to which Muhammad Zafar Iqbal, the alleged detenu, who was General Secretary, Tehreek-e-Fiqa-e-Jaffaria, Bahawalnagar, had been detained under Section 11-EEE of the Anti-Terrorism Act, 1997 for three months. He has not produced any record showing involvement of the alleged detenu in any case. He has also not been able to produce the notification containing the name of the alleged detenu in a list entered in the Fourth Schedule as envisaged under Section 11-EE of the said Act. A plain reading of Section 11-EEE of the Anti-Terrorism Act 1997 clearly shows that an order of detention of a person under this section can only be made if his name is included in the list referred to in Section 11-EE of the said Act. The learned A.A.-G. and the D.S.P. Legal, Bahawalnagar, both, have failed to produce that list, therefore, the detention order passed by the Home Secretary, Government of Punjab is illegal and without lawful authority.
Section 25 of the Anti-Terrorism Act, 1997 is to only provision which provides an appeal against the final judgment of Anti-Terrorism Court. The Act does not contain any provision providing appeal or representation against a detention order. In these circumstances of the case, the detention of Muhammad Zafar Iqbal the husband of the petitioner is held to be illegal. He is ordered to be released forthwith if not required in any case.