::Anti-Terrorism Case Law in Pakistan

IN THE LAHORE HIGH COURT BAHAWALPUR BENCH

Writ Petition No.3541 of 2011/Bwp

(Khawaja Mureed Hussain vs. Government of the Punjab, etc)

JUDGMENT

Khawaja Mureed Hussain, the petitioner, has invoked the

constitutional jurisdiction of this Court under Article 199 to

impugned the notification No.9-166-H-SPL-1/2005 dated

13.12.2005 whereby his name has been incorporated in the

list under 4th Schedule under Section 11-EE of Anti

Terrorism Act, 1997 (to be called hereinafter as Act) by

Home Department Government of Punjab.

2. Secretary to Government of the Punjab

Home Department in his parawise comments

contended that having sufficient evidence provided

by Law Enforcement and Intelligence Agencies

against the petitioner an activist of defunct

organization Tehrik-e-Jafria Pakistan/Sipah-e-

Sahaba Pakistan on the basis of his activities

prejudicial to public safety, maintenance of public

order and sectarian harmony his name was duly

incorporated in 4th Schedule.

3. It is argued by learned counsel for the

petitioner that respondents have not been able to

substantiate the allegations against the petitioner

through any speck of material and that despite

lapse of three years since the issuance of

notification dated 13.12.2005 petitioner’s name is

not deleted till date, therefore, impugned

notification is mala fide, of no legal effect and

untenable in law.

4. On the other hand learned AAG has argued

that Section 11-EE(3) of the Anti-Terrorism Act

1997 furnishes adequate remedy of appeal to an

aggrieved person to be filed within thirty days of

the notification; that petitioner did not avail

adequate remedy, therefore, cannot invoke the

constitutional jurisdiction of this Court.

5. We have given patient hearing to the learned

counsel for the petitioner, learned AAG and also

gone through the record.

6. At the outset it will be expedient for the

ready reference to reproduce hereunder Section 11-

EE of the Anti-Terrorism Act 1997 which reads

below:-

“11-EE. Security for good behaviour.—(1)

Whenever the Federal or Provincial Government

on an information received from any source that

any person is an activist, office bearer or an

associate of an organization kept under

observation under Section 11D of proscribed

under Section 11E, or in any way concerned or

suspected to be concerned with such organization

or affiliated with any group or organization

suspected to be involved in terrorism or sectarian,

such Government may notify the name of such

person or persons in a list entered in the Fourth

Schedule.

(2) Where a person’s name is listed in the Fourth

Schedule, the Federal or Provincial Government,

as the case may be, without prejudice to any other

action which may lie against such person under

this Act or any other law for the time being in

force, may take following actions and exercise

following powers, namely:-

(a) require such person to execute a bond with

one or more sureties [along with a bank

guarantee or cash not less than three

hundred thousand rupees to be deposited in

Court] to the satisfaction of the District

Police Officer in the territorial limits of

which the said person ordinarily resides, or

carries on business, for his good behaviour

and not to involve in any act of terrorism or

in any manner advance the objectives of

the organization referred to in subsection

(1) for such period not exceeding three

years and in such amount as may be

specified:”

7. Bare reading of above cited provision of the

Act makes it crystal clear that availability of

concrete material and cogent reason to prima facie

establish that the person is an activist, office bearer

or an associate of a proscribed organization, or an

organization suspected to be involved in terrorism

or sectarianism is sine qua non to incorporate the

name of such person in the list to be prepared

under 4th Schedule of the Act. It is pertinent to

mention that respondents in their parawise

comments have not been able to bring any speck of

material to substantiate their allegations against the

petitioner. In the absence of any tangible material

justifying the inclusion of petitioner’s name in the

4th Schedule he cannot be legally required to

execute a bond with sureties for a period exceeding

three years as stipulated in Section 11EE(2)(a) of

the Act. Therefore, persistent inclusion of the

petitioner’s name in 4th Schedule for indefinite

period beyond three years is prima facie violative

to the provisions of Article 10(4) of the

Constitution of Islamic Republic of Pakistan which

furnishes sufficient indiscriminate protection of

law to a citizen.

8. The expression “preventive detention”

although not defined in the Constitution, however,

is used in Sub Article (4) of Article 10 of the

Constitution of Islamic Republic of Pakistan 1973

W.P.No.3541-2011/Bwp 4

with an object to combat anti-social and subversive

elements from endangering the public safety and

security of the State as well as to ensure protection

to the personal liberty of a citizen as enshrined in

the said Article. Reliance is made upon:-

Government of East Pakistan Vs. Mrs.Rowshan

Bijaya Shaukat Ali Khan (PLD 1966 Supreme

Court 286).

9. In the light of the above legal and factual

position continuous retention of petitioner’s name

in the list prepared under the 4th Schedule of the

Act through the impugned notification after the

expiry of three years is untenable in law.

10. For the foregoing discussion and reasons

this writ petition is allowed and respondents are

directed to delete the petitioner’s name from the

list under 4th Schedule of the Act. Order

accordingly.

(Amin-ud-Din Khan)

JUDGE

(Abdus Sattar Asghar)

JUDGE

 

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