Kashmiri poet case: IHC’s Justice Kayani calls on intelligence agencies to shed label of culpability in abductions

Islamabad High Court (IHC) senior puisne judge Justice Mohsin Akhtar Kayani on Monday said that the intelligence agencies should shed the perception of their involvement in forced abductions.

The IHC judge was hearing a petition seeking the recovery of Kashmiri poet Ahmed Farhad Shah. Hours later, Law Minister Azam Nazeer Tarar criticised the remarks and observations in today’s hearing.

Shah was allegedly abducted from his home last week. The Human Rights Commission of Pakistan had called on the authorities for his immediate release.

A petition was filed by Shah’s wife in the IHC last Wednesday, requesting that he be found and produced before the court and to identify, investigate and prosecute those responsible for his disappearance.

Justice Kayani had conducted the first hearing on the matter and ordered Senior Superintendent of Police (SSP) Jameel Zafar to retrieve Shah at any cost, warning that he would otherwise summon the defence secretary. The judge had issued a notice to the defence secretary in the next hearing.

Two orders, both of which are available with Dawn.com, were issued for today’s hearings, one in the morning and the other after 3pm.

The order for the earlier hearing said that the counsels for the petitioner informed the court that a separate plea was filed on Saturday to withdraw the main petition after contact was established with Shah.

“The counsel for the petitioner contends that this application for withdrawal of the writ petition was filed with the assurance given by the Inter-Services Intelligence through telephone and SMS messaging to the petitioner Syed Urooj Zainab and during this communication, the officials of Inter-Services Intelligence have ensured that the detenu will be released on Saturday night, therefore, copy of application for withdrawal of the writ petition was also conveyed through the same channel to the concerned officials, but despite that detenu was not released, rather the matter was kept pending till Monday i.e. today. In these peculiar circumstances, the allegations have prima facie been leveled to InterServices Intelligence,” the order reads.

It added: “This Court is not satisfied with the working of the Secretary Ministry of Defence as well as officials of ISI as of now there is direct allegation against the agency, therefore, in these peculiar circumstances, Secretary, Ministry of Defence is directed to submit concise report with clear explanation till 3pm today.”

SSP Zafar was also ordered to “investigate the allegations with reference to the officials of Inter-Services Intelligence by recording the statement of officials and submit progress report today.”

The second part of the order for the post-3pm hearing said the defence ministry official informed the court that Shah was not in the ISI’s custody.

Thus, the order said it was necessary to defence and interior secretaries in person at 3pm on Tuesday to “to explain their position and give their point of view as to how and under what circumstances the law enforcement agencies are not able to detect a single person who has allegedly been abducted by the law enforcement agencies in Islamabad”.

Today’s hearing

Advocates Imaan Zainab Mazari and Hadi Ali Chatha were present in court today to represent Shah’s wife.

Mazari said that Shah had been missing since last week.

She said that they had received a WhatsApp call from Shah’s number on May 17 asking them to withdraw their request.

“Three drafts were shared between us and these people […] They told us to tell you that he had gone to the court himself,” Mazari said.

“Ahmed Farhad did not come back so we are not withdrawing the application,” she added.

Justice Kayani questioned whether the abductee was a terrorist or involved in kidnapping for ransom.

He directed SSP Zafar to produce Shah in court.

“Everyone has to bear the punishment for what the institutions are doing. I want the man (Shah) from the ISI (Inter-Services Intelligence). You should inform the DG (director general) ISI [Nadeem Anjum] that the man should be produced at any cost. Remove the label from yourself that you abduct [people],” he said.

Additional Attorney General (AAG) Barrister Munawar Iqbal Duggal said the entire institution could not be held responsible, adding that he had given a complete briefing to the defence secretary.

Justice Kayani said that the federal government needed to change people’s perception concerning institutions, adding that only the abducted would truly knew what they went through.

“Don’t take [issues] to the point where it becomes impossible for institutions to survive,” Justice Kayani said.

An official from the Ministry of Defence requested for two days to recover the poet.

Justice Kayani asked the official to contact the higher authorities and submit a reply to the courts by 3pm, otherwise, warning that he would otherwise issue the order.

“The face of the state is not unidentified persons, it is the police,” Justice Kayani said.

Resuming the hearing, the judge told the investigating police officer to record statements from the ISI sector commander for Islamabad and DG ISI under Section 161 of the Code of Criminal Procedure (CrPC).

“The sector commander is not living on the moon, what is his status?”

Justice Kayani said that what the institutions were doing was an abuse of authority.

“Have you ever been abducted? Beware of the time when everyone is abducted,” Justice Kayani said.

He asked the defence ministry official whether any of his relatives were ever abducted to which he said no, to which the judge said: “That’s why you don’t understand. Ask the feelings of those whose [relatives] are abducted.”

After the hearing resumed, AAG Duggal requested the courts to give an extension till tomorrow to produce the abductee. “ISI has said that they do not have him,” Duggal said.

At this, the judge said: “You submit the response in writing. I will call the defence minister,” Justice Kayani replied, adding that the defence secretary and his officers were answerable to the court.

“We have submitted an FIR,” Duggal said to which Justice Kayani responded: “Have you done us a favour by filing an FIR?”

Justice Kayani said the matter would go beyond the abduction case once he gave the order.

“This is not a simple matter that you abduct anyone whenever you want,” he said, adding that this practice should be stopped.

“They send messages on one hand and now they are saying we don’t have him,” he added.

The court summoned the secretary of defence and the secretary of interior tomorrow at 3pm.

“The country will either be run as per the law or the way of agencies,” Justice Kayani said.

“Do not contact the abductee’s wife in between,” the judge told the AAG.

Law minister criticises ‘inappropriate’ remarks

Meanwhile, Tarar said he was “pained” by the remarks reported from today’s hearing.

He said the federal government was ready to provide kind of assistance to the police in the case.

“But to say despite that this problem won’t be solved this way and all secretaries should come and if they don’t satisfy then senior army officials should come and stand — something about which the Constitution has a very different interpretation — and if they don’t satisfy then the prime minister and the cabinet will be summoned.

“With all due respect, this is not the mandate of the courts. The court has to dispense justice in accordance with the law and the Constitution. This is a sub-judice matter, it would be good if whatever the decision is, is passed through a court order instead of such sensationalised news coming out which spreads more unrest.”

Tarar said the above was “inappropriate”.

The law minister said Articles 199 and 248 of the Constitution were “very clear” about the army and government officials appearing before courts, protecting them from legal proceedings.

“Things like saying ‘the cabinet session will be held here’ are I think equal to undermining the constitutional role of Parliament and the cabinet arising out of it.”

The minister further said: “To preemptively say such strict things in one breath is I think not in accordance with judicial propriety, is painful and displays a situation as if there is a clash between institutions as if the executive is not ready to listen to the judiciary and vice versa.”

The minister was apparently referring to remarks by Justice Kayani in Thursday’s hearing where he had warned of summoning the prime minister and federal ministers if the recovery was not ensured.

In response to a question, Tarar said remarks like summoning the premier and ministers were “inappropriate” and contrary to a judge’s office.

Meanwhile, Adviser to the Prime Minister on Political and Public Affairs Rana Sanaullah said on Geo News programme ‘Aaj Shahzeb Khanzada Kay Sath’ that reviewing the judge’s remark “makes it very clear that it is not the respected judge’s or the judiciary’s job to give such remarks or speech but to make a decision”.

Sanaullah said if the judge had evidence then he should issue the verdict against whoever he thought responsible.