Hearing of Mir Shakil-ur-Rahman’s appeal: Bench breaks after one judge recuses

ISLAMABAD: The three-member bench constituted for hearing the appeal of Editor-in-Chief Jang-Geo Mir Shakil-ur-Rahman on Wednesday disbanded after Justice Umar Ata Bandial recused from the bench.

Editor-in-Chief Jang-Geo Mir Shakil-ur-Rahman’s appeal against an order passed by the Lahore High Court (LHC) dismissing his post-arrest bail petition in a case relating to a property transaction that took place 34 years ago was fixed before a three-member bench of the apex court headed by Justice Umar Ata Bandial and comprising Justice Muneeb Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi.

Justice Bandial, however, recused form the bench for personal reasons.

The judge announced that the instant matter is being referred to the Chief Justice of Pakistan for fixing it before a three-member bench next week. Khawaja Haris, counsel for Editor-in-Chief Jang-Geo, submitted before the court that apart from the main appeal, another two more CPLAs filed by the petitioner and his spouse against the order of Lahore High Court were also pending in the apex court. The learned counsel pleaded that these two CPLAs may also be clubbed with the main appeal which the court accepted and directed its office to do the needful.

It is pertinent to mention here that when Editor-in-Chief Jang/Geo Mir Shakil-ur-Rahman was arrested by the National Accountability Bureau (NAB) in March, 2020 in Lahore, he and his wife had challenged before LHC, his illegal arrest as well as illegal detention by the anti-graft body and physical remand.

A two-member bench of LHC, comprising Justice Sardar Ahmed Naeem and Justice Farooq Haider, had dismissed the post-arrest bail petition of Mir Shakil-ur-Rahman on July 8, 2020. In the appeal, Khawaja Haris, the counsel for Mir Shakil-ur-Rahman, has questioned whether the LHC division bench had dismissed the writ petition and denied bail to the petitioner through gross misreading and non-reading of facts, the record, complete misconception of the applicable laws and the obvious ulterior motives apparent from the conduct of the respondents.

He contended that the arrest and continued incarceration of the petitioner pending trial was not only a violation of the principle of presumption of innocence, but it was also tantamount to punishing the petitioner without trial and, as such, was violative of the fundamental right guaranteed to the petitioner under Articles 9, 10-A, 14, 15 and 25 of the Constitution, and of his constitutionally mandated right to treatment in accordance with the law.

“Whether, in any case non-payment of a sum of Rs143,530,000 to LDA as price calculated on the basis of current market value of the excess land (of 4k-12M) sold to the petitioner in the year 1986 could be made the basis for framing a case against the petitioner for alleged offence falling under any provision of NAO, 1999, without compliance of the mandatory pre-condition of 30 days’ notice as stipulated by Section 5(r) of NAO, 1999, and, in so far as no such notice was ever served upon the petitioner in terms thereof, the petitioner’s arrest and detention on this basis is void ab initio and violative of his fundamental rights under Articles 4, 9, 14, 15 and 25 of the Constitution,” Khawaja Haris had further questioned.

Similarly, he had questioned whether denial of bail to the petitioner by the High Court, and thereby his continuous incarceration, inter alia, for alleged non-payment of purported dues to LDA, without there being any adjudication thereof by a competent court of law after observing due process, was not violative of petitioner’s fundamental right guaranteed under Article 10-A of the Constitution.

Haris submitted that the petitioner was suffering from Tinnitus, Sleep Apnea, breathing disorder, hyperventilation and acute anxiety and his recent medical tests had revealed a growth in his kidney, two cysts in the prostate, and blood in the urine, while in judicial custody the doctors who checked him suspected malignancy. He further submitted that two of his siblings, one brother and a sister, had died from cancer.

He had further submitted that the petitioner was in continuous incarceration, while he carried a family history of cancer, in that 6 of his 9 family members, including his parents, had suffered from this lethal disease, had to be kept under constant medical surveillance in home and free to move for treatment from his doctors, his continued incarceration was aggravating his acute anxiety disorder which was consequently further aggravating his lethal sickness.