PESHAWAR: The Peshawar High Court on Wednesday directed the security forces to either shift all those kept in the illegal detention centres to the notified internment centres or free them, observing illegal detention is an offence under the Army Act and such cases could be tried by a civil court.

While hearing habeas corpus petitions related to over 150 missing persons, a bench comprising Chief Justice Dost Mohammad Khan and Justice Nisar Hussain warned that if anyone filed a complaint against an army officer of illegal detention, the court would be bound to try the official under Section 59 of the Army Act.

It directed the representative of the Defence Ministry, Major Ali, to convey the situation to the defence secretary, who, it observed, should take up the matter with the military high-ups onward.

The bench again turned down a report submitted by the Defence Ministry, which expressed ignorance about the whereabouts of the most detainees in these cases.A day earlier, the bench had rejected similar report produced in cases of around 250 missing persons.

The bench observed that the plea that detainees were not in the custody of forces or intelligence agencies didn’t appear tangible and acceptable as even on Wednesday, Israr Khan, who was freed lately after illegal detention, said he was picked up and whisked away and remained under the illegal custody of the army officials for sufficient times.

It ruled that the evidence in question could not be ignored.

The court re-produced an order issued a day earlier and directed the defence secretary to take up the matter seriously with GHQ to constitute an inquiry board consisting of senior officers from the army, federal and provincial governments, which should carry out the ground check with regard to the detention centres not notified by the government and see that nobody was illegally detained.

The bench ordered production of the report of the board before or on Oct 31, the date fixed for next hearing.

When the bench began hearing, Deputy Attorney General Farooq Shah, Major Ali and representative of Frontier Corps Major Mohammad Ayaz said three of the detainees were shifted to internment centres.

Similarly, lawyers of six petitioners said the detainee had reached home.

One of the freed detainee, Israr Khan, whose mother Meharzadgai had filed petition regarding his detention, said he was in the custody of security forces and was recently released.

The bench directed Major Ali to apprise the secretary of the emerging situation due to the decision to settle the matter with militants through negotiation as a joint declaration of political and military leadership was passed during the recent conference.

It observed that if troops were withdrawn from tribal areas in the near future, then in cases of the people detained outside the notified centres, the relevant field commanders would expose themselves to criminal prosecution under Section 59 of Army Act 1951, which declared illegal detention a civil offence, which could be tried by a civil court.

The bench observed that the secretary should take up the matter on priority basis with the relevant military authorities and GHQ so that effective and proper strategy could be adopted to deal with cases of detainees on priority.

It reiterated its earlier proposal regarding categorisation of illegal detainees so that those against whom ample proofs were available for prosecution should be immediately sent to the notified internment centres, while the rest should be immediately freed.

The bench pointed out that it was mandatory under Article 10 of the Constitution that every arrested person should be produced before the magistrate within 24 hours of his arrest otherwise the arrest would become unauthorised and would constitute illegal detention.

It warned the authorities that even the enactment of a new law to protect field commanders in this respect would be useless for being in conflict with Article 10 of the Constitution.