P L D 2017 Peshawar 23 (PLP)

IKRAMULLAH KHAN, J.--Petitioners through the instant constitutional petition have challenged the validity and legality of the impugned notification of unknown date, issued by the respondents, whereby some restriction were placed on the movement of the petitioners, detailed in the body of the petition.

2. Respondents on the direction of the Court have submitted their parawise comments and have annexed a list containing the names of proscribed persons, wherein names of all the petitioners were found to be included.

3. Learned counsel for the petitioners contended that act of respondents, whereof, they have placed the names of the petitioners in 4th Schedule of Anti Terrorism Act, 1997 (ATC), listing him as a prescribed person, without any inquiry and reasonable grounds is illegal, void ab initio and ineffective upon the fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973 and the same be set aside and the impugned notification be declared as illegal.

4. On the other hand, the learned Additional Advocate General argued that the writ petition agitated by petitioners is not maintainable as, the petitioners were required to file review petition and therefore, provision of appeal to this Court is also available but as the petitioners have not filed any review or appeal, could not invoke the jurisdiction of this Court.

5. We have heard learned counsel for the petitioners and the learned Additional Advocate General in light of law and available record.

6. The Federal Government may, by order published in official Gazette, list a person as a proscribed person in the forth schedule in term of the provision contained in Section 11-EE of the ATC if on the basis of reasonable grounds, believe that, such person is involved by either way, with any activities, linked by any manner with the proscribed organization or have concern in terrorism, which reads as:-- Section 11-EE Security for good behaviors:- (1) Whenever, the Federal Government 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 11-D or proscribed under section 11-E 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 sectarianism, such government may notify the name of such person or persons in a list entered in the forth schedule. (f) Monitor and keep surveillance over the activities of such person through police or any other government agencies or any person or authority designated for the purpose.

7. As mentioned in the ibid provisions of law, where any person is aggrieved by the order of the Federal Government made under sub-section (1) he may within thirty days of such order, file a review application, before the Federal Government and if such review application is refused, may file an appeal before the High Court within 30 days of the refusal of the review application, in terms of sub section (3) of section (11-EE) of the ATC, 1997, which reads as under:-- "Any person whose name has been notified in the list entered in the forth schedule under subsection (1) or aggrieved by any direction or order of the Federal or Provincial Government made under subsection (2) may within 30 days of such notification, direction or order, prefer an appeal to the Federal or Provincial Government, as the case may be, and such government after providing an opportunity a being heard to such person decide the appeal within 30 days."

8. According to the available record, petitioners were declared as proscribed persons, through various Notifications, issued by the concerned Government , whose description is well mentioned in the list dated 30.11.2011, being made impugned by the petitioners herein, by the instant writ petition, which is not the notification, whereby the petitioners were declared as proscribed persons, but it is a list wherein, which only describe those persons, who were already been placed in forth Schedule by the Federal Government through various Notifications prevailed over a period from 2003 to 2016.

9. Petitioner No. 11 namely Mohammad Anus-ur-Rehman was placed in forth schedule vide Notification dated 01.11.2003 while rest of petitioners were deemed as proscribed persons vide Notification dated 11.02.2013 except the petitioner, Abdul Waheed, who was placed in the said schedule vide Notification dated 11.02.2011, but petitioners have not challenged the above mentioned Notification, whereby their names were placed in forth schedule of ATC, 1997, either by filing the review application or the required appeal before this Court in terms of sub-section (3) of Section 11-EE of ATC, 1997 within the prescribed period of limitation respectively.

10. The jurisdiction of this Court in view of Article 199 of the Constitution, 1973 could not be invoked, where other adequate remedy was available to an aggrieved person.

11. There can be no departure from the constitutional mandate and no legal fundamental rights of citizen be curtailed or otherwise, restricted and every citizen in term of Articles 4 and 10-A of the Constitution of 1973, to be dealt with in accordance with law and no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law, but the petitioners, failed to point out any infirmity or any other fault, in the exercise of power, conferred upon the concern Government, by declaring the petitioners as proscribed persons. The concerned government as mentioned in subsection (2) of section (11-EE) of the Act, 1997, thereafter listed the names of a person in forth schedule may take actions and exercise the powers, prescribed thereunder the ibid section of law to place the prescribed restrictions, upon such a person, and may also arrest and detain such suspected person subject to the conditions mentioned in section (11-EE) of the ATC, 1997. However, the liberty of a citizen could not be curtailed merely on presumptions and the satisfaction, described thereunder section 11-EE of ATC, 1997 shall be objective in nature and not subjective in nature so as to allow the Authorities to act on whims and caprices without there being any material before them in support of grounds of placing name of a person in forth schedule.

12. In case in hand, on one hand petitioners have not invoked jurisdiction of the concerned Government while on the other hand, no any material is brought on record that their proscription is against the law.

13. Therefore, for the reasons mentioned herein above, this writ petition being devoid of any merit, is dismissed accordingly. SL/238/P Petition dismissed.