ISLAMABAD: The Islamabad High Court (IHC) on Friday convicted Deputy Commissioner (DC) Irfan Nawaz Memon, Senior Superintendent of Police (SSP) Malik Jameel Zafar and Station House Officer (SHO) Margalla police station for contempt of court and sentenced them to six, four and two months imprisonment, respectively.

The court, however, enabled them to file appeals by suspending their sentence for a month. The contemnors on the other hand filed the appeals the same day.

IHC division bench comprising Chief Justice Aamer Farooq and Justice Tariq Mehmood Jahangiri is likely to hear the appeals on Monday.

The IHC single member bench comprising Justice Babar Sattar convicted the officials for repeatedly issuing and executing successive detention orders issued against Pakistan Tehreek-i-Insaf (PTI) leader Shehryar Afridi.

The court observed that “between May 9, 2023 and Nov 2, 2023, DC Irfan Memon issued some 69 detention orders in exercise of power under Section 3 of the Maintenance of Public Order (MPO)”.

Judge awards officials jail term, imposes fine; allows them to appeal sentence

The judge noted that “cumulative period of detention that he ordered against those on the receiving end exceeded 1,000 days. Over two dozen petitions were filed before Islamabad High Court (IHC) challenging these orders. These cases were marked before seven out of the eight judges comprising IHC. Except for two cases, where detention orders were issued out of concern for sectarian violence, not one order detaining political workers on grounds of incitement of violence sustained judicial scrutiny.”

Justice Sattar found that “the manner in which the authority was exercised by the district magistrate in the instant matter was colorable and completely devoid of any rational basis aimed at achieving the objects of MPO i.e. to maintain public order or public safety”.

He further said that “in view of the record that was produced before the court, it is evident that the conduct of district magistrate/deputy commissioner constitutes a fraud on the statute and the Constitution and amounts to exercise of statutory authority in a manner that can be characterized as malice in law”.

The court also found that the impugned detention orders are ultra vires the Constitution and have been passed in breach of provisions of MPO and are coram non judice and without jurisdiction.

According to the order, the district magistrate is facing contempt of court proceedings for obstruction of justice and in order to uphold his right to fair trial and due process, it is essential for this court not to form a firm opinion with regard to his conduct and what inspired such conduct.

Justice Sattar stated that the court adopted due process for the trial of the contemnors and were also given ample opportunities of defence.

“While this court took judicial notice of the material brought on record by state authorities during the hearing of Shehryar Afridi, it also summoned the record keepers of public offices to once again produce the relevant record before the court,” the order stated.

As per the charge sheet, DC Memon “issued an order in exercise of powers under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (MPO) ordering the detention of Mr. Shehryar Afridi on August 8, 2023 on the basis that he was inciting general public through the content of his statements and was planning attacks on district courts and other public buildings in Islamabad.”

“In essence, what the executive authorities, prima facie, are trying to achieve is to curtail, at any cost, the liberty of the petitioner through preventive detention and that too in an arbitrary manner,” the charge sheet stated.

In the case in hand, the Islamabad police arrested the petitioner (Shehryar Afridi) but instead of investigating him in criminal cases, requested the district magistrate to detain him in preventive custody. The exercise of power and jurisdiction is arbitrary on part of the police officials and mechanical and without applying judicious mind on part of the district magistrate, ICT, the charge sheet said.

The detention orders issued by the district magistrate under the MPO against the petitioners was a result of arbitrary exercise of jurisdiction, excessive use of lawful authority and issued without applying judicious mind, it added.

The court accused the deputy commissioner of attempting to “obstruct the process of the court and disobeyed the order of the court”.

Subsequently, the judge held that DC Memon, “is guilty of contempt of court and shall be punished with six months simple imprisonment and Rs100,000 in fine”. Likewise, “SSP Malik Jameel Zafar is guilty of contempt of court and shall be punished with four months simple imprisonment and Rs100,000 in fine while SHO Nasir Manzoor is guilty of contempt of court and shall be punished with two months of simple imprisonment and Rs100,000 in fine,” the court announced.

The IHC ruled that all these officials “will serve their sentence at Adiala Jail”.

The judge, however, observed that since they have a right to appeal this verdict before a divisional bench of this court within 30 days pursuant to section 19 of the Ordinance and the sentence awarded constitutes a short sentence and the convicted respondents being public servants do not pose a flight risk, the sentence shall stay suspended for a period of 30 days to enable the respondents to avail their remedy of appeal.

The court was of the view that though these contemnors could continue their respective offices, it asked the government to find their replacements.

The verdict says: “In suspending this sentence, this court has also taken into account the fact that respondent nos. 1, 2 and 4 occupy public offices and their sudden removal therefrom could adversely affect public convenience. The suspension of this sentence would enable the government to respond to this verdict without causing inconvenience to the citizens.”

Published in Dawn, March 2nd, 2024