EVER SINCE the cases of “enforced disappearances” started surfacing in the superior courts during the last couple of years, the intelligence agencies have been playing clever. They never concede the detention of any missing person before the courts. In several cases the alleged detainees were picked by the local police and handed over to these intelligence agencies. However, these police officials also remained reluctant to divulge the facts before the courts. Perhaps they were also scared of these agencies.The way these agencies have been operating, an impression emerged as if these are above the law and no legal instrument, both national and international, is applicable to them. However, over a year ago in one of the cases they had to accept that 11 prisoners who mysteriously went missing from the Adiala Jail, Rawalpindi, were in their custody. That case has now put the elite intelligence agency of the country in a difficult position.

The Supreme Court will resume hearing of the case on Feb 13. Four of these prisoners have been shifted from a government-run hospital to Islamabad, whereas three others were shifted from an internment centre in Parachinar, Kurram Agency. Four of the 11 prisoners have expired during the last couple of months.

These intelligence agencies have now been trying to drag the provincial government of Khyber Pakhtunkhwa into the mess created by the agencies. While none of the provincial government departments were involved in the detention of these prisoners, they have now to inform the court about their role in the issue. During one of the proceedings the counsel of intelligence agencies claimed that the detainees were handed over to the provincial government, a claim which is devoid of facts as the internment centre at Parachinar does not come under the control of provincial government.

Legal experts dealing with cases of missing persons believe that the Khyber Pakhtunkhwa government should not conceal facts from the apex court. They believe that any misstatement before the court could not withstand the reality in this case.

The said 11 prisoners were arrested from different places and charged with attacks carried out on the GHQ and Hamza Camp of the Inter Services Intelligence in 2007. They were acquitted by an anti-terrorism court in Rawalpindi in April 2010. However, instead of setting them free they were held in the prison under the laws meant for preventive detention.

Finally, the Lahore High Court declared their detention illegal on May 28, 2010. Following the court order the said prisoners went missing and their family members alleged that they had seen them being whisked away by sleuths of intelligence agency. Their disappearance was challenged before the Supreme Court. While the intelligence agencies continued to deny that they were picked by them, the Punjab government had informed the court that they were handed over to the agencies.

When the apex court did not buy the argument of the intelligence agencies their counsel informed the court in Dec 2010 that they were in the custody of intelligence agencies, but were arrested in a conflict area where they were taken by their companions. The apex court disposed of that petition when the counsel claimed that they would be tried by a court martial under the Army Act.

Throughout the controversy these intelligence agencies continued to change statements and tried to hoodwink the court through different excuses. Although, they made statement at the bar that these prisoners would be tried under the Army Act, but they were never tried and instead four of them -- Mohammad Aamir, Said Arab, Tehseenullah and Syed Abdul Saboor -- expired under mysterious circumstances for which their family members blamed their captors.

The controversy took a new turn when mother of three of the detainees, one of whom had died, moved the Supreme Court and the court issued their production order. Four of the remaining seven prisoners were dumped at the Medico-Legal Ward of Lady Reading Hospital, Peshawar. According to officials at the hospital they were in bad shape and suffering from different ailments.

The family members of these prisoners claimed that almost all of them before their disappearance weighed 80 to 90kg, but now they had been turned into living skeletons as they had lost considerable weight. They alleged that their captors had been starving them to death and also slow poisoning them. The agencies denied these allegations through media reports.

During previous hearing on Feb 10, the counsel of the agencies faced an uphill task to convince the bench headed by Chief Justice Iftikhar Mohammad Chaudhry that they could not be produced before the court. The court has fixed Feb 13 for the next hearing and put on notice different government functionaries including the Khyber Pakhtunkhwa chief secretary.

These intelligence agencies have now come up with another story that the seven detainees will now be treated under the Action (in Aid of Civil Power) Regulation 2011, two set of laws introduced by the president last year for the Federally Administered Tribal Areas (Fata) and Provincially Administered tribal Areas (Pata). These laws are widely believed as black laws and several of its provisions are considered by the legal circles, including the Supreme Court Bar Association, in conflict with the constitution.

This controversy has now turned into a test case for the judiciary as already different quarters have been raising question that when the prime minister can be summoned by the court, why not responsible officials of Inter Services Intelligence or Military Intelligence, as the case may be, could be ordered to appear in person and clarify their position.

If the officials responsible for the death of four of the prisoners and multiple ailments of the rest are identified and action taken against them, it would convey a clear message to these agencies and would help in resolving the cases of dozens of missing persons.

Presently, the Peshawar High Court has been dealing with scores of missing person petitions and in almost all these cases the intelligence agencies have expressed ignorance about the detainees.

PHC Chief Justice Dost Mohammad Khan recently warned that they would be constrained to order registration of cases against heads of intelligence agencies if they continued to violate the constitution in such a manner. The court had observed that it would no longer accept stereotyped replies by the government and said that the court should be given specific details about each of the detainees.