ISLAMABAD, Dec 2: In a startling disclosure, the acting Defence Secretary, retired Maj Gen Raja Arif Nazir, informed the country’s highest court on Monday about the death of two of the 35 detainees the court had ordered to be produced.
The revelation has given an entirely new, and more disturbing, dimension to the issue of missing persons as for the first time the government has accepted that some of those reported missing for years were not only in the custody of armed forces, at least a couple of them have died in detention under unexplained circumstances.
Visibly disturbed by the information, the Supreme Court said it was a “custodial killing” for which the agencies concerned would be held responsible.
The internees, along with one Yasin Shah, were to be produced before a three-judge bench comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khawaja and Justice Amir Hani Muslim.
When the case was taken up, Maj Gen Raja Nazir said that Sardar Ali had died on Dec 29 last year and Nadir Khan on July 1 this year at the Lakki Marwat Internment Centre inside the Malakand Garrison. They died of natural causes and the bodies had been handed over to their families in accordance with the procedure, he said, adding that the whereabouts of the other 33 were being ascertained.
But the court said the death of the two detainees was evidence suggesting that the rest were also in the custody of intelligence agencies. It ordered Defence Minister Khawaja Asif, who was present in the court, to ensure production of the 33 persons on Tuesday positively without any excuse. Otherwise, it warned, the law would take its own course.
The case was taken up on an application of Muhabbat Shah, elder brother of Yasin Khan of Katlang, Mardan.
At a previous hearing, Superintendent Judicial Lockup Malakand presented a letter informing the court that 66 undeclared internees, including Yasin Shah, had been handed over to him in September 2011 by the army authorities without any internment order. Thirty-one of them were later declared internees by the internment authorities and the remaining 35, including Yasin Shah, were shifted out of the Malakand centre by the army authorities.
The acting secretary defence insisted that these people were not in the custody of the armed forces and said that it was the Khyber Pakhtunkhwa government which ran all the 48 internment centres.
Some of the relatives of missing persons were deeply saddened by the news about the death of two internees and Muhabbat Shah fainted in the courtroom. He was timely helped by his friends at the pointation of Justice Khawaja and taken to a clinic inside the court premises.
Attorney General Muneer A. Malik informed the court that Yasin Shah was not among the dead.
The court ordered immediate arrest and prosecution of those responsible for the deaths and suggested that FIRs could be registered, sealed and then opened at a later stage.
“This fight will go on,” the court said, adding that even the written statement submitted in this regard did not suggest that both died of natural causes.
“It is the inviolable obligation of the people of the country to obey the command of the constitution. It is the fundamental right of the state to protect the life of its citizens.
“The mandate of Article 4 of the Constitution does not confer any authority upon the government or any of its branches to violate or flout the green book,” the court observed.
As has been said time and again, the court explained that any person involved in criminal and unscrupulous activities deserved to be dealt in accordance with the law. “We are trying our level best to enforce the fundamental rights of citizens.”
The defence minister assured the court that he would again take up the matter with the highest authorities and said that since things were in the transition and Monday was the first day of new Army Chief Gen Raheel Sharif in his office, he could not inquire about the matter.
The attorney general said he had advised the defence minister to ascertain the identities of Major Zulfikar and Naib Subedar Amanullah who had allegedly taken the custody of these missing persons from internment centres after which their whereabouts were not known.
The court expressed annoyance over a letter addressed to the AG by the defence ministry through the law division in which it was asked to dissociate Additional Attorney Genera Tariq Khokhar from the case because he had misrepresented the point of view of the defence ministry by stating that Yasin Shah was an undeclared internee and would be produced before the court soon.
At the outset of the proceedings, AG informed the court about the letter but said he had asked the ministry officials to engage their own counsel if they lost confidence but he would stand by the AAG.
The bench said Tariq Khokhar was a senior and most respected officer of the court and the AG should consider how his office was being humiliated. “We will take action if the minister did not sack the officer who had written the letter,” the court said, adding that the letter was in fact an attempt to interfere in the judicial proceedings.
The letter was written by Director Legal Mohammad Irfan of the defence ministry.
The content of the letter was in fact a misstatement of the record and facts, the court said, adding that the director legal who had been associated with the proceedings of the case never objected to the statement when made by Tariq Khokhar.
The court directed the defence secretary to look into the matter and inform it about the action taken against the law officer for making in writing something contrary to the judicial record.