P L D 2000 Supreme Court 111 (PLP)

IRSHAD HASAN KHAN, J.‑‑‑This judgment shall dispose of Constitutional Petitions No.22 and 25 of 1999, filed by Jamat‑i‑Islami Pakistan and Muttahida Qaumi Movement (MQM), respectively, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as the Constitution), challenging the vires of Ordinance (IV of 1999), dated 27‑4‑1999, whereby certain amendments were introduced in Anti‑Terrorism Act, 1997 (XXVII of 1997) on the ground of being repugnant to the Constitution and contrary to the guidelines provided by this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). It may be observed that the above Ordinance stood repealed on the expiration of four months, in terms of Article 89 of the Constitution. However, the Anti‑Terrorism (Second Amendment) Ordinance (Ordinance MIT of 1999), dated 27‑8‑1999, was promulgated by re‑enacting the provisions of Ordinance IV of 1999 with some modifications. In order to avoid multiplicity of proceedings and in the interest of justice, we have allowed the parties to make submissions on the vires of Ordinance XIII of 1999 as well.

2. The provisions of Anti‑Terrorism Act, 1997 (Act XXVII of 1997). (hereinafter referred to as the Act) came up for consideration in the case of Mehram Ali (supra), which was disposed of on 15‑6‑1998 for the reasons to be recorded later on, by the following short order: (i) Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon; (ii) section 10 of the Anti‑Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reason for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search; ' (iii) section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal'", (v) section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate'. (vi) that the offences mentioned in the Schedules should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act; (vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is t4 be vested in the High Court to be notified by the Government; (viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary.

2. That the above declaration will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to as above."

3. Before dilating upon. the submissions made by Mr. M.. Akram Sheikh, learned Senior Advocate Supreme Court appearing for the petitioners, it would be convenient to refer to the comparative analysis of Anti‑Terrorism Act XXVII of 1997, Ordinance IV of 1999 and Ordinance XIII of 1999 and the situation pre‑and post‑Mehram Ali's case: COMPARATIVE ANALYSIS OF ANTI‑TERRORISM ACT, XXVII OF 1997 . SITUATION PRE AND POST MEHRAM ALI S CASE S:No. 1 Act XXVII of 1997 2 Mehram Ali PLD 1998 SC 1445 3 Ordinance IV of 1999 4 Ordinance XIII of 1999 5 Section 7-A of the Ordinance IV of 1999 has been amended and mainly, its portion related to handbill, graffiti and wall-chalking been omitted (the omitted portion is shown below as highlighted) 7-A. Creation of civil commotion.--"Civil commotion" means creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatta, acts of criminal trespass (illegal Qabza) distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act XLV of 1860). 1

5. Use of armed forces and civil armed forces to prevent terrorism.--(1)Any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of any officer of the armed forces or civil armed forces, exercise upon; all the powers of a police officer under the Code. (2) In particular and without prejudice to the generality of the provisions of subsection (1). an officer of the police, armed forces and civil armed forces may--(i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, and it shall be lawful for any such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorised to use force in terms hereof; (i) Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fined upon;

4. Amendment of section

5. Act XXVII of 1997.-In the said Act, in section 5, in subsection (2), in clause (1), the comma and words or in all probability is likely to commit" shall be omitted. No Amendment 2

10. Power to enter or search If any officer of the police, armed forces or civil armed forces is satisfied that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 8 he may enter and search the premises where it is suspected the material or recording is situated and take possession of the same. (ii) section 10 of the Anti- Terrorism Act, 1997, hereinafter referred to as the Act in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search;

8. Amendment of section' 10, Act XXVII of 1997.-In the said Act, in section 10, the full- stop at the end shall be replaced by a colon and thereafter, the following proviso shall be added, namely:-- Provided that the concerned officer shall first record in writing his reasons for such belief and serve a copy thereof either on the person or on the premises. No Amendment 3 4 5 6 7 8 9 10 11 12 13

14. Commission and appointment of Presiding Officers of Special Courts.-(1) A Special Court shall consist of a Judge, being a person who

(i) is or has been a Sessions Judge or an Additional Sessions Judge; or (ii) has exercised the powers of a District Magistrate or an Additional Distt. Magistrate and has successfully completed an advance course in Shariah, (Islamic Law) conducted by the International Islamic University, Islamabad; or (iii) has for a period of not less than ten years been an advocate. (2) The Federal Government Shall make appointments to the post of Judge of Special Court after consultation with the Chief Justice of the High Court. Explanation.-- The qualification of being an advocate for a period of not less than ten years may he relaxed in the case of a suitable person who is a graduate from an Islamic University and has studied Islamic Shariah and Fiqh as a major subject.

19. Procedure and Dowers of Special Court.-- (10) Any accused person may be tried in his absence if the Special Court, after such inquiry as it deems fit, is satisfied that

(b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on the account ordered his removal from the Court: Provided that, in a case referred to in clause (a), the accused person shall not be tried unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code: Provided further that the Special Court will proceed with the trial after taking the necessary steps to appoint an Advocate to defend the accused person who is not before the Court. Explanation.--An accused who is tried in his absence under subsection (1) shall be deemed not to have admitted the commission of any offence for which he has been charged.

24. Appellate Tribunal.‑ There shall be one or more Appellate Tribunals for each Province consisting of one or two Judges of the High Court to be nominated by the Chief Justice of the said Court and notified by the Government. Explanation.‑‑In this section "High Court" means the High Court of the Province for which Special Court has been constituted.

25. Anneal.‑‑(1 ) An appeal against the final judgment of Special Court shall lie to an Appellate Tribunal. (2) Copies of the judgment of a Special Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial Court shall be transmitted to the Appellate Tribu nal within three days of the decision. (3) An appeal under subsection (1) may be preferred by a person sentenced by a Special Court to an Appellate Tribunal within seven days of the passing of the sentence. (4) The Attorney‑General or an Advocate General may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order. (5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days. (6) An Appellate Tribunal shall sit at such places, and have jurisdiction within such territorial limits, as may be fixed by the Government. (7) Subject to subsection (8), an Appellate Tribunal shall, in exercise of its appellate jurisdiction, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code. (8) Pending the appeal the Appellate Tribunal shall not release the accused on bail.

26. Admissibility of confession made before office.‑ Not withstanding anything contained in the Qanun‑e‑ Shahadat, 1984 (P.O.10 of 1984), a confession made by a, person accused of an offence punishable under section 7' or section 8 of this Act or an offence covered by subparagraph (3) of the Schedule to this Act, or robbery or dacoity with murder or rape before a police officer not below the rank of a Deputy Superintendent of Police may be proved against such person: Provided that Special Court may, for admission of the confession in evidence, require the police-officer to produce a video tape together with the devices used for recording the confession.

27. Punishment for defective investigation.--If a Special Court or an Appellate Tribunal comes to the conclusion during the course of or at the conclusion of the trial that the Investigating Officer, or other Concerned Officers have failed to carry out the investigation properly or diligently or have failed to pursue the case properly and in breach of their duties, it shall be lawful for such Court or, as the case may be, Appellate Tribunal to punish the delinquent officers with imprisonment which may extend to two years, or with fine, or with both by resort to summary proceedings.

28. Transfer of cases.- (1) Notwithstanding anything contained in this Act, an Appellate Tribunal may, if it considers it expedient so to do in the interest of justice, or where the convenience or safety of the witnesses or the safety of the accused so requires, transfer any case from one Special Court to another Special Court within or outside the area. (2) A Special Court to which a case is transferred under subsection (1) shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall and re-hear any witness who has given evidence and may act on the evidence already recorded.

30. Modified application of certain provisions of the Code.-(1) Notwithstanding Anything contained in the Code or in any other law, every scheduled offence shall be deemed to be a cognizable offence within the meaning of clause (1) of section 4 of the Code and the words cognizable case" as defined in that clause shall be construed accordingly. (2) Sections 374 to 379 of the Code shall apply in relation to a case involving a scheduled offence subject to the modification that the references to a "Court of Session" and "High Court", wherever occurring therein, shall be construed as reference to a "Special Court" and an Appellate Tribunal. (3)Notwith standing the provisions of sections 439, 491, 496, 498A and 561 A of the Code, no Court other than a Special Court shall have the power or jurisdiction to grant bail to, or otherwise release, an accused person in a case triable by a Special Court. (4) A Special Court shall not release an accused person on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged, and nor shall an accused person be released unless the prosecution has been given notice to show cause why he should not be so released and the accused has furnished sound sureties.

34. Power to amend the Schedule.‑‑ The Government may, by notification, amend the Schedule so as to add any entry thereto or modify or omit any entry therein.

35. Power to make rules.‑‑The Government may, by notification, make such rules, if any, as it may deem necessary for carrying out the purposes of this Act.

37. Contempt of Court.-A special Court and an Appellate Tribunal shall have the power to punish with rigorous imprisonment for a term which may extend to six months with fine any person who-- (a) abuses, interferes with or obstructs the process of the Court or the Tribunal in any way or disobeys any order or direction of the Court; (b) scandalizes the Court Or Tribunal otherwise does anything which rids to bring the Court or Tribunal or a Person constituting the court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending or most likely to come up before the court or Tribunal: or (d) does anything which, by any other law. Constitutes contempt of Court or Tribunal. Explanation.--In this section. "Court" means a special Court and "Tribunal" means an Appellate Tribunal. (viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary. (iii) Section 19 19 (1)(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in' the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid. (iii) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Consti tution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal". (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Consti tution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words High Court in place of Appellate Tribunal: (v) Section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate'; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"; (iv) sections 24.25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"; (vi) That the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act; (vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence. of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High court To be Notified by The Government; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal": officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate';

10. Amendment of section 14, Act XXYII of 1997.--In the said Act, in section14,-- (a) in subsection (1), in clause (iii) after the word "Advocate" at the end the words "of a High Court" shall be added; and (b) For subsection (2), the following shall be substituted, namely:-- "(2) A Judge shall be appointed for a period of two and a half years after consultation with the Chief Justice of the High Court."

12. Amendment of section 19, Act XXVII of 1997.-In the said Act, in section 19;-- (i) for subsection (10), the following shall be substituted, namely:-- "(10) any accused person may be tried in his absence if the Anti Terrorism Court after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice: Provided that the Accused persons shall trot be tried under this subsection unless a proclamation has been published in respect of him in at least three national daily newspapers , out of which one shall be in Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code: Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the Accused person who is not before the Court. Explanation.--An accused who is tried in his absence under this sub section shall be deemed not to have admitted the commission of any offence for which he has been charged.": and (ii) after sub section (11), the following new subsection shall be inserted, namely:‑‑ (11‑A)Nothing contained in subsection (11) shall be construed to deny the accused the right to consult or be defended by a legal practitioner of his own choice.

13. Amendment of section 24, Act XXVII of 1997.‑ In the said Act, section 24 shall be omitted. 2.General Amendments. Act XXVII of 1997. In the Anti- Terrorism Act, 1997 (XXVII of 1997), hereinafter referred to as the said Act,‑‑ Court", . "a High Court" or "the High Court" shall be substituted respectively. (b) for the words "Appellate Tribunal", or "the Appellate Tribunal" wherever occurring the words "High Court", "a High Court" or "the High Court" shall be substituted respectively. 15.Amendment of section 26, Act XXVII of 1997. In the said Act, section 26 shall be omitted.

2. General Amendments, Act XXVII of 1997.-In the Anti-Terrorism Act, 1997 (XXVII of 1997), hereinafter referred to as the said Act,-- (b) for the words "Appellate Tribunal" or "the Appellate Tribunal" wherever occurring the words "High Court", "a High Court" or "the High Court" shall he substituted respectively.

16. Amendment of section 28, In the Anti- Terrorism Act XXVII of 1997.-In the said Act, in section 28, in subsection (2) the full-stop at the end shall be replaced by a colon and thereafter the following proviso shall be added, namely:-- "Provided that nothing herein contained shall affect the powers of the presiding officer of the Special Court to call any witness as is available under the law."

2. General Amendments. Act XXVII of _1997.-In the Anti-Terrorism Act, 1997 (XXVII of 1997), hereinafter referred to as the said Act,-- (b) for the words "Appellate Tribunal" or "the Appellate Tribunal" wherever occurring the words "High Court", "a High Court" or "the High Court" shall be substituted respectively. No Amend ment. No Amend ment. Substitution of section

37. Act XVVII of 1997.-In die said Act, for section 37, the following shall be substituted, namely:-- "

37. Contempt of Court.--An Anti-Terrorism Court shall have the power to punish with imprisonment for a term which tray extend to six months and with fine any person who-- (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order or direction of the Court; (h) scandalize the Court otherwise does anything which rends to bring the Court or a person constituting the Court into hatred, ridicule or contempt. (c) does anything, which tends to prejudice the determination of a matter pending or most likely to come up before the Court: of (d) does anything which, by any other law, constitute contempt of Court. Explanation. In this section, "Court" means "Anti‑Terrorism Court. ". No Amendment No Amendment No Amendment No Amendment No Amendment No Amendment No Amendment No Amend ment No Amendment No Amendment No Amend ment No Amend ment No Amend ment

4. Mr. M. Akram Sheikh, learned Senior Advocate Supreme Court for the petitioners argues that the provisions of Ordinance IV of 1999 and Ordinance XIII of 1999 are inconsistent and repugnant to the Fundamental Rights and also are in derogation of the guidelines laid down by this Court in Mehram Ali's case (supra). However, after arguing the case at some length from various angles on the touchstone of Fundamental Rights and the ruling by this Court in the case of Mehram Ali (supra), his first objection is that the amendment through the impugned Ordinance is section 5 of the act by providing just omission of the expression "or in all probability is likely to commit" which has already been declared as void would be of no effect, in that, the Supreme Court in the case of Mehram Ali (supra) specifically held section 5(2)(i) to be invalid to the extent it authorises the officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, "to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon" and therefore, by not doing so that provision is contrary to the judgment in Mehram Ali's case (supra).

5. Mr. Aziz A. Munshi, learned Attorney‑General submits that section 5(2)(i) of the Act has not been suitably amended due to inadvertence and/or error on the part of the draftsman. He emphasised that this Court may reasonably interpret the above provision in consonance with the mandate enshrined in paragraph (1) of the short order rendered in the case of Mehram Ali (supra).

6. We are inclined to agree that the provisions of section 5(2)(i) of the Act were not suitably amended as expressly mandated by this Court. If the provisions of section 5 of the Act in their present form are given effect to, it will create horrible and far‑reaching consequences, inasmuch as, the law enforcing agencies cannot be given a licence to kill indiscriminately any persons who are allegedly involved in committing terrorist acts as defined under the Act or any of the scheduled offences. Clearly, such a right is to be exercised as a preventive measure and not made basis for launching an attack for retaliation, lest it would tantamount to legalising alleged police encounters/extra judicial killings in the garb of exercise of power by a Police Officer vesting in him under section 5(2)(i) of the Act. Such a course can never be countenanced in a civilised society, particularly, in Pakistan, where Islam is the State religion. It would also militate against the Objectives Resolution forming substantive part of the Constitution under Article 2A thereof, wherein it is, inter alia, provided that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. Reference may be made to a book entitled BUNIADI HAKOOK by Muhammad Salahuddin, in Chapter (ISLAM KAY ATTA KARDA BUNIADI HAKOOK ) whereof at page No.241 under the caption (TUHAFZAY JAAN) he maintains: Furthermore, all the offences mentioned in the Act are not punishable with death, but are also punishable with imprisonment for life, or with rigorous imprisonment for various terms. For instance: _______________________________________________________________________________________ Section Offence Punishment under the Pakistan Penal Code _____________________________________________________________________________________ 302 Qatl‑i‑Amd Qisas, or death, imprisonment for life or imprisonment up to twenty‑five years. 295‑A Maliciously insulting the Imprisonment of either description for religion or the religious ten years or fine or both. beliefs of any class 298‑A Use of derogatory Imprisonment of either description remarks etc. in respect for three years and fine or both. of holy personages. 364 Kidnapping or abducting Imprisonment for life or rigorous in order to murder, imprisonment for ten years and fine. 364‑A Kidnapping or abducting Death or imprisonment for life a person under the age or rigorous imprisonment of fourteen. for a term which may extend to fourteen years and shall not be less than seven years. 365 Kidnapping or abducting Imprisonment of either description for with intent to secretly and seven years and a fine. wrongfully confine a person. It is incumbent upon the police force to act so as to enforce Article 9 of the Constitution, given in Chapter 1 thereof, which provides that no person shall be deprived of life or liberty save in accordance with law rather than to violate the same and expose itself to criminal prosecution. In this regard the principles enshrined in sections 99 to 106 of the Pakistan Penal Code are also instructive, which contemplate that police personnel cannot exercise the right of private self‑defence more than what has been directed in the above sections. It would be advantageous to reproduce the above provisions of the Pakistan Penal Code, 1860, which read thus: "

99. Acts against which there is no right of private defence.‑‑There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised.‑‑The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Explanation 1.‑‑A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows, or has reason to believe that the person doing the act is such public servant. Explanation 2.‑‑A person is not deprived of the right of private defence against an act done, or attempted to lie done by the direction of public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

100. When the right of private defence of the body extends to causing death.‑‑The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Thirdly. An assault with the intention of committing rape. Fourthly. An assault with the intention of gratifying unnatural lust. Fifthly. An assault with the intention of kidnapping or abducting. Sixthly. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release.

101. When such right extends to causing any harm other than death.‑‑If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

102. Commencement and continuance of the right of private defence of the body.‑‑The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

103. When the right or private defence of Property extends to causing death.‑‑The right of private defence of property extends, tinder the restriction mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely‑. First. Robbery; Secondly. House‑breaking by night. Thirdly. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property; Fourthly. Theft, mischief or house‑trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

204. When such right extends to causing any harm other than death..‑‑if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.

105. Commencement and continuance of the right of private defence of property.‑‑The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house‑breaking by night continues as long as the house‑trespass which has been begun by such house‑breaking continues.

106. Right of private defence against deadly assault when there is a risk of harm to innocent person.‑‑If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. "

7. In Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983, this Couft white examining the defence plea of encounter in terms of section 99 of the P.P.C. and after examining the cases of Ali Mea v. King‑Emperor AIR 1926 Cal. 1012, Ahmad Nawaz v. The State 1970 SCMR 597 and Mashal Khan v. The State PLD 1988 SC 25 observed as under:‑‑ "On the basis of the above authorities, one can urge that once the right to exercise private self‑defence is established, the same cannot be defeated lightly, but at the same time, the force used must be in proportion to the injury to be averted and must not be employed for the gratification of vindictiveness or malicious feeling. The right of private self‑defence is to be used as a shield to ward off an unwarranted attack to person or property but it cannot be used as a vehicle for provoking an attack. In other words, it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose. The Court will have to examine the above question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked, who exercises the right of private defence. The Court, while examining the above question, will not measure his action in golden scales but would extend due concession on account of human error of judgment in such a situation. Since, in the present case, we have held that there was no police encounter, the question of exercising right of private self‑defence by the convicts did not arise. We may observe that Mr. Minto, learned counsel for the appellants, has not been able to point out any provision of law whereby the police personnel can exercise right of private self‑defence more than what has been provided for in sections 96 to 106, P.P'C. In this view of the matter, simpliciter, an encounter will not entitle a police party to kill indiscriminately the persons who are allegedly involved in the encounter as the basic requirement provided inter alia in section 99, P.P.C. namely, 'the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence', will be very much applicable. Secondly, the police personnel themselves cannot be the sole arbiter on the question, whether the killing of certain persons in an alleged encounter was warranted by the facts of the case but it is for the competent Court of law to decide the above question. We may further observe that Article 9 given in Chapter 1 of the Constitution of the Islamic Republic of Pakistan containing the Fundamental Rights guarantees that 'no person shall be deprived of life or liberty save in accordance with law' and, therefore, the public functionaries like police force, are to act in aid of the enforcement of the above Constitutional provision rather than to violate the same and expose themselves to criminal prosecution."

8. The Government should have kept in view the law declared by this I Court in the case of Ch. Yaqoob (supra) and Mehram Ali (supra). We, therefore, hold that section 5(2)(i) of the Act as introduced by Ordinance XIII of 1999 to the extent indicated above is violative of Article 9 of the Constitution as well as the guidelines provided in the case of Mehram Ali (supra) and the same is held to be invalid to the above extent and requires to be suitably amended.

9. The second objection is that the provision of the impugned Ordinance XIII of 1999 in so far as inserting section 7‑A into the Anti -Terrorism Act, 1997, by including illegal strikes, go‑slows, lock‑outs as "civil commotion" and providing punishment for the same militates against the Fundamental Right of freedom of expression provided in Article 19 of the Constitution and is also inconsistent with the labour laws of the country which ensure observance of various Fundamental Rights. It is argued that the phrases "internal disturbance", "illegal strikes", are vague and unreasonable. The learned Attorney‑General also states that the above provision should be reasonably interpreted, in that, the citizens are entitled, to know as to what constitutes the offence of "civil commotion" in the context of "internal disturbances" and "illegal strikes".

10. The learned counsel for the petitioners and the learned Attorney- General have not drawn our attention to any other statute wherein definition of the term "internal disturbances" has been given. The above term has not been defined in the Constitution. Under Article 232 thereof, it is merely stated thereunder that "internal disturbances" refer to. those disturbances which are beyond the power of the Provincial Government to control. ~Therefore, while construing the term "internal disturbances" the term is to be understood in terms of general parlance. "Internal disturbances" in the context of civil commotion may include an outbreak of large scale violence due to disturbances in any part of the country. The term "strike" is popularly used in labour laws of the country and is generally understood as a simultaneous cessation of work on the part of the workmen, and its legality or illegality depend on the means by which it is enforced and upon its object having reference to specific provision in the relevant laws. The "strike" is the combined effort of workmen to obtain higher wages or other concessions and privileges from their employers by stopping work at a pre‑concerted time until their demands are met. The question as to whether a call of strike given by workmen or members of Labour Union or members of the Union of workers/employees is lawful or otherwise depends upon the facts and circumstances of each case having regard to the specific provisions laid down in the relevant statutes and the object sought to be achieved. Distinction between lock‑out and strike is depicted in a case from American jurisdiction Dail‑Overland Co. v. Willys‑Overland, D.C. Ohio, 263 F.171, 186, wherein it was observed that "A 'strike' where men quit because the employer refuses conditions demanded of him, and a 'lock‑out' where employees refuse to return to work unless the employer meet their demands". (Refer Words and Phrases, Permanent Edition, Volume 40, p.471). In City of Wilmington v. General Teamsters Local Union 326 Del., 321 A.2d 123, 126, it was held that "In order for there to be a 'strike,' there must be some concerted action or combined effort by group which is designed to exert pressure on an individual or entity to accede to certain demands." Work stoppage is a lock‑out and not a strike. However, in certain conditions a "work stoppage" may be synonymous with the word "strike", for instance, where stoppage of work may arise because of strike, but picketing by employees during work stoppage as a result of lock‑out generally does not mean that the employees were on "strike". Strikes and lock‑outs in labour or industrial disputes may be permissible as well as impermissible, legal as well as illegal, depending upon the facts of each case with reference to the relevant provisions in the relevant statute. Strike is also understood to mean cessation of economic activity including ' Paiyya Jam (Wheel Jam) and closure of shops and establishments at the call of a political party to press for their political demands in furtherance of their manifesto, policies or programmes. Strike may also be in the nature of sympathy strike which is a common manifestation of traditional solidarity with a cause. Sympathy strikes are a common manifestation of national solidarity on any national or international cause in endeavouring to preserve and strengthen a noble cause. Sit down strike is generally observed at the call of a political party by resorting to "Dherna" (sit down).

11. The term "civil commotion" and "disturbance" have been defined in the Words and Phrases, Volume 7, as under: CIVIL COMMOTION: "A 'civil commotion' is an uprising among a mass of people which occasions a serious and prolonged disturbance and infraction of civil order not attaining the status of war or an armed insurrection, and is a wild irregular action of many persons assembled together. A 'commotion' is defined to be a tumult and tumult to be a. promiscuous commotion of a multitude; an irregular violence, a wild commotion. A 'civil commotion', therefore, requires the wild or irregular action of many persons assembled together. A 'civil commotion' is an insurrection of the people for general purposes, though it may not amount to a rebellion while there is a usurped power." DISTURBANCE Any conduct contrary to the usages of a particular sort of meeting and class of persons assembled, and which interferes with its due progress or is annoying to the assembly in whole or in part is a 'disturbance'. 'Disturbance' is defined as any conduct which, being contrary to the usages of the particular sort of meeting and class of persons assembled, interferes with its due progress and services, or is annoying to the congregation in whole or in part. It would be advantageous to refer here the meaning of the word "vague": "Vague" means allusive, ambiguous, broad, debatable, disputable, dubious, equivocal, evasive, impalpable, imponderable, inapprehensible, inarticulate, incomprehensible, inconspicuous, indefinite, indeterminate, indistinct, inexact, inexpressive, inscrutable, insubstantial, intangible, nebulous, non‑committal, oblique (evasive), obscure (faint), opaque, open‑ended, problematic, uncertain (ambiguous), unclear, undecided, undefinable (Legal. Thesaurus, Regular Edition, by William C. Burton). "Vague": Indefinite. Uncertain; not susceptible of being understood. For purposes of determining whether statute is constitutionally infirm by reason of being vague, statute is "vague" if its prohibitions arc not clearly defined (Black's Law Dictionary (Sixth Edition) by Henry Compbell Black).

12. It is well‑settled that Statutes must be intelligibly expressed and reasonably definite and certain. An act of the Legislature to have the force and effect of law must be intelligibly express and statutes which are too vague to be intelligible are a nullity. Certainty being one of the prime requirements of a statute, a statute in order to be valid must be definite and certain. Anticipated difficulty in application of its provisions affords no reason for declaring a statute invalid where it is not uncertain. Reasonable definiteness and certainty is required in statues and reasonable certainty is sufficient. Reasonable precision, and not absolute precision or meticulous or mathematical exactitude, is required in the drafting of statutes, particularly as regards those dealing with social and economic problems. Clearly, the language of the statute and, in particular, statute creating an offence must be‑precise, definite and sufficiently objective so as to guard against an arbitrary and capricious action on the part of the State functionaries who are called upon to enforce the statute. It is well.‑settled that penal statutes contemplate notice to ordinary person of what is prohibited and what is not. Mr. M. Akram Sheikh, learned A.S.C. for the petitioners, was right in contending that Article 4 of the Constitution relating to the rights of individual to be dealt with in accordance with law, is in the nature of "due process" clause. To enjoy protection of law and to be treated in accordance' with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No person shall be prevented from or be hindered in doing that which is not prohibited by law and no person shall be compelled to do that which the law does not require him to do. Every citizen has the inalienable right under the Constitution to know what is prohibited by law and what the law does not require him to do. It is, therefore, incumbent upon the State to express in clear terms susceptible of being , understood by an ordinary citizen of what is prohibited and to provide definite standards to guide discretionary actions of Police Officers so as to prevent arbitrary and discriminatory operation of section 7‑A of the Act. In other words, it must be spelt out from a bare reading of section 7‑A as to what constitutes "internal disturbances", "illegal strikes", "go‑slows" and "lock‑outs" in terms of section 7‑A of the Act.

13. It is the duty of the Court to find out the true meaning of a statute while interpreting the same. The general rule is that the Courts adopt as uniform an approach as possible to the reading of ambiguous Acts of Parliament which are some times imperfect, obscure and vague. Refer Nairn v. University of St. Andrews (1909) AC 147, at p.161. The primary rule of interpretation of statutes is that the meaning of the Legislature is to be sought in the actual words used by him which arc to be interpreted in their ordinary and natural meaning. (Refer Bhawani Lal's Interpretation of Statutes, p.2). The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves (Craies on Statute Law, 7th Edn. pp.64‑65). Where the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation, and the Court has no right to impose another meaning or to read into its limitations which are not there, based on a prior reasoning as to the probable intention of, the Legislature (see Bindra on Interpretation of Statutes, 7th Edn., p.478). This Court in the case of Ms Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and AI‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 resorted to the proceedings of the Legislature when the language employed was ambiguous. In Fisher v. Bell (1961) 1 QB 394, a shopkeeper was accused of offering a flick‑knife for sale by putting it in his shop‑window. The question arose whether 'offer' was used in its popular sense or technical. Held, it was used in its technical sense in the law of contract, under which placing goods in a shop‑window does not constitute an offence. The controversy in the above case arose out of section 1(1) of the Restriction of Offensive Weapons Act, 1959 which provided that any person 'who manufactures, sells or offers for sale or hire, or lends or hires to any other person' any flick‑knife is guilty of an offence. It was observed that the Act being to a large extent addressed to shopkeepers it was passed with reference to a particular trade.

14. Under section 2(xxv) of the Industrial Relations Ordinance, 1969 the terms "strike", "lock‑out", illegal strike", "illegal lock‑out" have been defined as under:‑‑ "Strike" means cessation of work by a body of persons employed in any establishment acting in combination or a concerted refusal or refusal under a common understanding of any number of persons who have been so employed to continue to work or to accept employment. "Lock‑out" means the closing of a place of employment of part of such place or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional, by an employer to continue to employ any number of workmen employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment; "Illegal strike" means a strike declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance. "Illegal lock‑out" means a lock‑out declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance. 15. 1n the instant case the offences of "illegal strike", "lock‑out" and "go‑slow" have not been used with reference to dispute between workmen and employers, but were intended to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected with them and incidental thereto, as is apparent from a bare reading of the Preamble to the Act. It is, therefore, difficult to hold that the words "illegal strike", "lock‑out" and "go‑slow" have been used in the sense as defined in the Industrial Relations Ordinance, 1969, or in other labour or l industrial laws. The words "illegal strike", "lock‑out" and "go‑slow" are wide open terms which include, apart from employer and employees engaged in commerce, trade and industry, other persons irrespective of their trade and calling. These terms, therefore, cannot be restricted merely to Labour Laws. Clearly, it would not be a fair or desirable interpretation to restrict the meaning of the above terms in the context of Labour Laws alone. The meaning of "illegal strikes" are since doubtful the same may be ascertained by a reference to the words associated with it by applying the rule of Noscitur a. sociis. The rule that a word is known by the company it keeps, is not an ineluctable rule. It is applied wisely only where a word is capable of many meanings so that giving an unintended breadth to a statute may be avoided. Refer "Interpretation of Statutes" by Vepa P. Sarathi. It is well‑settled rule of construction of statutes that if the words used are ambiguous and admit of two constructions and one of them leads to a manifest absurdity or to a clear risk of injustice and the other leads to no such consequence, the second interpretation must be adopted. Thus, for the smooth operation of the law and the purposes for which it has been enacted i.e. to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences, we are inclined to hold that the above terms have not been used in the restrictive sense but in a broader sense. When faced with this Mr. Aziz A. Munshi, learned Attorney -General did not dispute the above proposition of law but submitted that the terms "illegal strike", "go‑slows" and lock‑outs" are to be read as ejusdem generis with the' term "internal disturbances" in the context of "civil commotion" as envisaged by section 7‑A of the Act.

16. The doctrine of ejusdem generis is well‑settled. It means that where general words follow an enumeration of persons or things, by words. of a particular and specific meaning such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. The application of doctrine of ejusdem generis was examined in Don Basco High School v. The Assistant Director, E.O.B.I. and others PLD 1989 SC 128, relevant, passages thereof read as under:‑‑ "However, the doctrine will apply when there is nothing in the provision or Act to show a wider sense was not intended or the intention to give to the general term a broader meaning than the doctrine requires was not manifested. According to 'Maxwell on the Interpretation of Statutes, 12th Edition, page 297, it is a well‑established rule in the construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature, R. v. Cleworth (1864) 4 B. & 5.927 per Cockburn C.J. at

932. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular, expressions, unless there is something to show that a wider sense was intended (emphasis supplied). Reference is made by the author to R. v. Edwardson (1859) 28 L.J.M.C. 213). According to Corpus Juris Secundum, Volume 82, page 658, the rule of doctrine of 'ejusdem generis' will apply unless intention to the contrary is clearly shown. The relevant passage may be quoted here. It reads: 'Where general words follow the enumeration of particular classes of persons or things, the general words, under the rule or maxim of construction known as 'ejusdem generis', will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown.' J.G. Sutherland, in his book "Statutes and Statutory Construction (Third Edition) in section 4910, at page 400 has stated that the doctrine applies when the following five conditions exist‑‑ (1) the statute contains an enumeration by specific words; (2) the members of the enumeration constitute a class; (3) the class is not exhausted by the enumeration; (4) a general term follows the enumeration; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires. " The question still remains to be solved that in the absence of clear, certain and definite expression of the phrase "internal disturbances" not susceptible of being understood in terms of the language employed therein, an ordinary citizen will have no notice of what disturbances are prohibited which tantamount to "internal disturbances" in the context of "civil commotion" as defined in section 7‑A of the Act. It is difficult to give an exhaustive definition of the term "internal disturbances". It may be understood in the context of run down of the law and order situation in the country. Disturbances resulting in loss of life and property, disturbances resulting from large scale clashes between various factions of the people, or where a Government finds it difficult to maintain law and order, to run the ordinary administration of the country, to keep open educational institutions and to ensure normal economic activity and functioning of the various State institutions could be termed as internal disturbance, lepending upon the language in a statute. It is essential to define in clear an definite terms as to what constitutes an act of civil commotion in unambiguous words without derogation to the rights of the citizens to the enjoyment of rights guaranteed under Article 4 (rights of individuals to be dealt with in accordance with law). Article 9 (security of person), Article 14 (inviolability of dignity of man), Article 16 (freedom of assembly) and Article 27 (equality of citizens) and Article 19 (freedom of speech and expression) and there shall be freedom of the press, subject to any reasonable restriction imposed by law in the 4 interest of the glory of Islam or the integrity, security or defence of Pakistan w or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an offence.

17. We are not persuaded to accept that the terms "illegal strike", "lock out" and "go‑slow" are to be read in the context of Labour Laws, as argued by the learned Deputy Attorney‑General. The learned Attorney‑General was right in arguing that the above words are to be read ejusdem generis with the word "internal disturbances". However, the difficulty is that the words "internal disturbances" used in section 7‑A are vague. The term "internal disturbance" may have various meaning depending upon the context in which it is used. The words "internal disturbance" and "civil commotion" connote temporary outbreak of unlawful violence, whereby the ordinary business of. the community is, more or less, interrupted and it has the effect of uprising among the masses which occasion a serious and prolonged disturbance and, insurrection. Civil disorder not attaining the situation of war or an armed insurrection, is a wild and irregular action with many persons assembled together. "Internal disturbance" is a disturbance occurring in any part of the country which wrongfully interferes with the general tranquillity in social and ordinary life of the people under the Constitution and the law. The meaning of the term "internal disturbances", "illegal strike", lock‑out" and "go‑slow" must be expressed in definite terms for the purposes of section 7‑A of the Act, in that, it would not be in the interest of justice to leave it to a Police Officer to apply the law which is vague and unintelligible. Constitutional guarantee of the Fundamental Right to have a fair trial is spelt out from Article 9 of the Constitution. An accused is not only entitled to pre‑trial disclosure by the prosecution to the defence of relevant material specially the statement of witnesses under section 161, Cr.P.C. but also pre‑commission disclosure of the offence before being tried. It is the duty of the State to disclose in the law as to what constitutes an offence. Viewed from that angle section 7‑A of the impugned Act to the extent indicated above is unconstitutional, in that, it infringes the presumption of innocence and does not meet the condition of reasonableness due to vagueness. Every citizen has a constitutional right to lead his life in accordance with law and what is not prohibited by law, The vague definition of the words "internal disturbances", "illegal strike" "lock‑out" and "go slow", if allowed to continue in the statute in their present form, could lead R to imbalance in individual and community rights.

18. We, therefore, hold that section 7‑A of the impugned Act to the extent indicated above is invalid being repugnant to the Constitution and requires to be suitably amended.

19. The third objection is that in the absence of security of tenure for the incumbent in the office of Judge of the Courts set up under the Anti terrorism Act section 14 of the Act is violative of the concept of independence of Judiciary, guidelines whereof have been enunciated to the case of Mehram Ali (supra) as well as the case of Sh. Liaquat Hussain v Federation of Pakistan (PLD 1999 SC 504) relating to establishment of Military Courts in Karachi under Ordinance XII of 1998 as amended subsequently. The precise submission of the learned counsel for the petitioners is that in the Short Order it was specifically, mandated that section 14 of the Act should be suitably amended so as to provide security of tenure of the Judges of the Special Courts in consonance with the concept of independence of Judiciary. This direction has not been complied with, Through Ordinance XIII of 1990 amendment has been introduced in section 14 of Act XXVIII of 1997 wherein subsection (2) of the old Act has been amended as follows: "(a) in subsection (1), in clause (iii) after the word "advocate" at the end the words "of a High Court" shall be added: and (b) for subsection (2), the following shall be substituted, namely: (2) Subject to the provisions of subsection (4), the Federal Government or the Provincial Government, if directed by the Federal Government to establish a Court under this Act, shall after consultation with the Chief Justice of the High Court, appoint a Judge of each Court. (3) A Judge shall hold office for a period of two and a half years but may be appointed for such further term or part of term as the Government appointing the Judge may determine. (4) A Judge may be removed from his office prior to the completion of the period for which he has been appointed after consultation with the Chief Justice of the High Court."

20. We find that section 14 has been suitably amended in consonance with the principles laid down in Mehram Ali and Al‑Jehad Trust cases. The appointment of the Judges of the Anti‑Terrorism Courts have to be made by the Federal Government or the Provincial Government, as the case may be, in consultation with the Chief Justice of the High Court concerned. Statutory tenure of 2‑1/2 years has also been guaranteed and a Judge once appointed cannot be removed prior to the completion of the period for which he has been appointed, except/after consultation with the Chief Justice of the High S Court concerned. It is inconceivable that the Chief Justice of a High Court would recommend arbitrary removal of any Judge of the Anti‑Terrorism Court in contravention of his statutory tenure except on ground .of misconduct.

21. Lastly, it was contended that section 35 of. the Act in its present f form was held not valid as it militated against the concept of independence of~ Judiciary and also being violative of Articles 175 and 203 of the Constitution and, therefore, required to be suitably amended. However, while promulgating Ordinances IV of 1999 and XIII of 1999 section 35 was not amended as directed in the case of Mehram Ali (supra). It is argued that the Ordinance IX of 1998, dated 24‑12‑1998, section 35 of the Act was substituted by Ordinance IX of 1998 in violation of this Court's direction. It would be advantageous to reproduce the controversial section 35 of the Act which reads thus: "

35. Power to make rules.‑‑(1) A High Court may make such rules, T if any, as it may deem necessary for carrying out the purposes of this Act. (2) The rules made under subsection (1) shall be notified by the Government in the official Gazette." When faced with this, the learned Attorney‑General again submitted that this appears to be a case of inadvertence on the part of the draftsman in the Ministry of Law, Justice and Parliamentary Affairs, in that, it is unimaginable that any direction/order passed by the Supreme Court is not complied with. If that is so, we expect that in future the draftsman in the Law Ministry would be more careful and vigilant in following the decisions of this Court. Suffice it to say, that under Article 190 of the Constitution all Executive and Judicial Authorities throughout Pakistan are bound to act in aid of the Supreme Court. Therefore, this section be suitably amended as directed in the case of Mehram Ali (supra).

22. We have .not dilated upon other provisions of the impugned Ordinance, in that, the same have not been seriously objected to. We have also found them to be intra vires and not in conflict either with the provisions of the Constitution or the guidelines provided in the case of Mehram Ali (supra).

23. In the result, we hold that: (i)Section 5 (2)(i) of the Act as introduced by Ordinance XIII of 1999 to the extent indicated above is violative of Article 9 of the Constitution as well as the guidelines provided in the case of Mehram Ali (supra) and the same is held to be invalid to the above extent and requires to be suitably amended; (ii) section 7‑A of the impugned Ordinance to the extent indicated above is invalid being repugnant to the Constitution and requires to be suitably amended. Commencement or continuation of illegal strikes, go‑slows and lock‑outs mentioned in section 7‑A should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act. (iii) section 14 has been suitably amended in consonance with the principles laid down in Mehram Ali and Al‑Jehad Trust cases; and (iv) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government. The judgment rendered in these petitions shall not affect the trials already concluded and convictions recorded in the Act as amended through Ordinances IV and XIII of 1999 and pending trials may continue subject to the above. We would also like to record our appreciation of Mr. M. Akram Sheikh, learned Senior Advocate Supreme Court who skilfully argued the case, as well as for the precise, clear and candid submissions made by Mr. Aziz A. Munshi, learned Attorney‑General for Pakistan assisted by Mr. Tanvir Bashir Ansari, learned Deputy Attorney‑General.

24. Resultantly, the above Constitutional petitions stand disposed of in the above terms. (Sd.) IRSHAD HASAN KHAN, J. I agree with the judgment subject to my note separately recorded. (Sd.) SAIDUZZAMAN SIDDIQUI, C.J. (Sd.) IRSHAD HASAN KHAN, J. I agree with the main judgment and also with the note of Hon'ble Chief Justice. (Sd.) NASIR ASLAM ZAHID, J. (Sd.) MUHAMMAD BASHIR JEHANGIRI, J. I respectfully agree with the main judgment and also with the note added by the Honourable Chief Justice. (Sd.) RAJA AFRASIAB KHAN, J. SAIDUZZAMAN SIDDIQUI, C.J.‑‑‑I have gone through the judgment proposed to be delivered by my learned brother, Irshad Hasan Khan, J. in the above cases. I agree with the judgment subject to the following note. This Court in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) while declaring various sections of Anti‑Terrorism Act, 1997 (No.XXVII of 1997), hereinafter to be referred as 'the Act', as ultra vires suggested measures for appropriate amendments therein as follows:‑‑ (i) Section 5 (2) (i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence,, without being fired upon; (ii) section 10 of the Anti‑Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search; (iii) section 19 (10) (b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"; (v) section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate'; (vi) that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6,7 and 8 of the Act; (vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government; (viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary. " To give effect to the judgment of this Court in Mehram Ali's case, the President on 24th October. 1998 promulgated Anti‑Terrorism (Amendment) Ordinance (IX of 1998) which amended sections 2, 5, 6, 7, 10, 14, 16, 19, 25, 27, 28, 30 and 35, omitted sections 24 and 26 and substituted new section 37 m place of the old one, in the Act. On the expiry of Ordinance IX of 1998, the President re‑promulgated Anti‑Terrorism (Amendment) Ordinance, 1999 (1V of 1999), hereinafter to be called as Ordinance IV of 1999, on 27‑4‑1999 which besides repeating all the amendments introduced by Ordinance IX of 1998 (except the amendment A made in section 35) in the Act, inserted new sections 7‑A, 7‑B, 39‑A in the A Act and also added a new Entry No. 5 after Entry No. 4 in the Schedule to the Act. The petitioners challenged the above amendments introduced in the Act through Ordinance IV of 1999 in the above petitions on the grounds that the amendments made in the Act were not in accordance with the directions given by this Court in Mehram Ali's case. During pendency of the above petitions, Ordinance IV of 1999 was repealed by Anti‑Terrorism (Second Amendment) Ordinance, 1999 (Ordinance No.XIII of 1999) (hereinafter to be called as 'Ordinance XIII of 1999). Ordinance XIII of 1999 besides, repeating the amendments made in the Act introduced by Ordinance IV of 1999, further amended sections 7‑A, 7‑B, 13, 14 and 39‑A of the Act. The petitioners, therefore, also challenged the amendments made in the Act through Ordinance XIII of 1999. I have examined the amendments made in various sections of the Act through Ordinance XIII of 1999 in the light of the observations in Mehram Ali's case and am of the view that except the amendment made in section 5(2)(i), omission to amend Section 35 and the validity of section‑7‑A, which will be dealt with separately, the rest of the amendments made in the Act, appear to be iii accord with the observations of this Court in Mehram Ali's case. In so fir the amendments made in Section 5 (2) (i), validity of the newly‑added section 7‑A and the effect of omission to amend section 35 of the Act, the same is examined as follows:‑‑ Section‑5, as it originally stood in the Act, reads as under:‑‑ "

5. Use of armed forces and civil armed forces to prevent terrorism.‑‑‑ (1) Any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code. (2) In particular and without prejudice to the generality of the provision of subsection (1), an officer of the police, armed forces and civil armed forces may‑‑ (i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act of a scheduled offence, and it shall be lawful for any such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorised to use force in terms hereof; (ii) arrest, without warrant, any person who has committed an act of terrorism or a scheduled offence or against whom a reasonable suspicion exists that he has committed, or is about to commit, any such act or offence; and (iii) enter and search, without warrant, any premises to make‑any arrest or to take possession of any property, fire‑arm, weapon or article used, or likely to be used, in the commission of any terrorist act or scheduled offence. (3) Nothing contained in subsection (1) or (2) shall affect the provisions of Chapter IX of the Code and the provisions of section 132‑of the Code shall apply to any person acting under this section. " This Court in Mehram Ali's case examined the validity of this section and struck it down for the following reason:‑‑ "(i) It may be stated that subsection (1) of section 5 of the Act provides that any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of subsection (2) thereof empowers a police officer or member of the above forces after giving prior warning to use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to use force, or to order the firing upon any person or persons against whom he is authorised to use force in terms thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no person shall be deprived of life or liberty save in accordance with law. The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence The formation of opinion as to the probability or likelihood of commission of offence will vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. We are, therefore, of the view that the aforesaid provision in its present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him. " The Government while amending section 5 ibid, only omitted the words "or in all probability is likely to commit" in clause (i) of subsection (2) of section 5 ibid. The contention of Mr. Akram Shaikh, the learned counsel for the petitioners in the above petitions is that the above amendment made in section 5(2)(i) of the Act is not in line with the direction of this Court in Mehram Ali's case. Mr. Tanvir Bashir Ansari, the learned Deputy Attorney‑General, on the other hand, contended that omission of words "or in all probability is likely to commit" from section 5(2)(i) of the Act sufficiently complied the direction of this Court in Mehram Ali's case with regard to section 5 of the Act. The learned Deputy Attorney‑General, in support of his contention, specifically referred to the observations of this Court at placitum 'Q' in the judgment in this regard, which I have already reproduced above. The contention of the learned Deputy Attorney‑General does not appear to be correct. Section 5 (2)(i) as amended authorises the police officer or the member of the armed forces or the civil armed forces, deployed in connection with the prevention of terrorism to fire or order firing upon any person who is committing a terrorist act or a scheduled offence. The list of offences triable under the Act is given in the Schedule to the Act. There are many offences listed in the Schedule for which punishment prescribed under the relevant law is ten years or less. Therefore, if a person is tried for such scheduled offences before an A.T.A. Court and convicted, he would be liable to punishment which may extend to ten years or less. However, under section 5(2)(i), the police officer or the armed forces or civil armed forces may open fire on such offender, without being fired upon, if he is found committing the offence, thus, causing his death. Such a provision is clearly violative of the terms of Article 9 of the Constitution. The learned Attorney -General, who subsequently appeared in the above cases also, candidly conceded that section 5(2)(i) is to be amended keeping in view the underlined observations of this Court reproduced above. I, therefore, hold that amendment made in section 5(2)(i) is not in accordance with the direction of this Court in Mehram Ali's case. This section, therefore, requires to be suitably amended in the light of the above observations:‑‑ Section 35 of the Act in its original form was as follows:‑‑ "

35. Power to make rules The Government may, by notification, make such rules, if any, as it may deem necessary for carrying out the purposes of this Act." The above section was held invalid for the following reasons:‑‑ "(vii) It may be mentioned that section 35 of the Act empowers the Government to frame rules through a notification, which it may deem necessary for carrying out the purposes of the Act. Since we have already held that under sections 24, 25, 27, 28, 30 and 37 of the Act High Court should be substituted in place of 'Appellate Tribunal' and as the Special Courts are to operate/function under the control and, supervision of the High Court concerned in terms of Article 20 of the Constitution, the power to frame rules should vest in the High Court and not in the Government. We therefore, hold that section 35 of the Act in its present form is not valid as it militates against the concept of independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended in the right of the above findings. " Through Ordinance IX of 1998, section 35 of the Act was amended as follows:‑‑ "Power to make rules.‑‑‑‑(1) A High Court may make such rules, if any, as it may deem necessary for carrying out the purposes of this Act. (2) The rules made under subsection (1) shall be notified by the Government in the official Gazette." The above amendment made in section 35 ibid, was in line with the observation of this Court in Mehram Ali's case. However, the above amendment was omitted while promulgating Ordinances IV and XII of 1999. C The learned .Deputy Attorney‑General conceded that the amendment made in G section 35 ibid, through Ordinance IX of 1998 should have been repeated in Ordinance IV of 1999 and Ordinance XIII of 1999. I, therefore, direct that section 35 ibid, be amended suitably in line with the observations reproduced above. The learned counsel for the petitioners besides contending that the above amendments made in the Act through Ordinance IV of 1999, Ordinance XIII of 1999 are not in accordance with the judgment of this Court in Mehram Ali's case very vehemently argued that section 7‑A inserted in the Act is violative of Articles 2A, 4, 9, 16, 17, 19 and 25 of the Constitution. It is contended by the learned counsel for the petitioners that the Legislature while defining "civil commotion" have used expressions like "internal disturbance, illegal strikes, go-slows, lock‑outs which are vague and ambiguous and are capable of being misinterpreted and misused by the authorities to deprive the people of their fundamental rights guaranteed under the Constitution. It is contended that while creating new offences, the definition should be precise and intelligible so that the person could understand clearly what acts if committed will fall within the definition of the offence. The determination of such' offence could not be left on the interpretation of the words used in the definition by the person charged with the enforcement of the Act. The learned Deputy Attorney‑General, on the other hand, contended that illegal strike, go‑slow and lock‑outs are to be read ejusdem generis with the earlier expression used in the section "internal disturbance". According to learned Deputy Attorney‑General if the illegal strike, go‑slows and lock‑outs result in the internal disturbances then alone it would be treated as "civil commotion" as defined in section 7‑A. After considering the arguments of the learned counsel for the parties, I am of the view that to the extent section 7‑A makes internal disturbance, illegal strikes, go‑slows and lock‑outs punishable as an act of terrorism, the same cannot be upheld. The Act was promulgated with the object of prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto as is evident from its preamble. "Terrorist act" was defined in section 6 as follows:‑‑ "

6. Terrorist Act, ‑‑‑‑Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does not act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire‑arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or displays fire‑arms. or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act. The above definition of 'terrorist act'' was amended from time to time and the latest amended definition of a 'terrorist act' is given in Ordinance XIII of 1999 as under:‑‑ "

6. Terrorist Act.‑‑‑A person is said to commit a terrorist act if he‑‑ (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire‑arms or other lethal weapons as may he notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people or to adversely affect harmony among different sections of the people; or (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or (d) commits an act of civil commotion as specified in section 7‑A. " I am, therefore, of the view that to make an act punishable under the Act, it must be shown that the act bears nexus to sections 6, 7 and 8 of the Act. In Mehram Ali's case this Court while examining the scope of the power of the Government under section 34 of the Act to amend the Schedule to the Act by adding or deleting the entries therein observed as follows:‑‑ "(vi) It may be observed that the learned counsel for the petitioners urged with vehemence that the power given under section 34 of the Act to the Government to amend the Schedule to the Act so as to add any entry thereto or modify or omit any entry therein by a notification is ultra vires the Constitution. It has been further urged by them that the above power has been abused inasmuch as many offences have been included which have no nexus with the object of the Act or with the offences covered by sections 6, 7 and 8 thereof. In this regard, it may be pertinent to mention that delegation of such power to the Government by the Legislature is not an unusual phenomenon. In order to implement the object of a statute or to work out certain detail, such power is normally delegated. In this regard, reference may be made to the case of Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 SC 358). In the above case, the Legislature had conferred power on the Central Board of Revenue to formulate guidelines to determine rate of production, capacity tax and even to levy tax under section 3, 4, 5, 6 and 7 of the Central Excises and Salt Act, 1944, as amended by the Finance Act, 1966. The above provision was assailed but this Court held that the Legislature was competent to employ proper agency to accomplish its legislative purpose. Reference may also be made to the case of Muhammad Hussain Ghulam Muhammad and another v. The State of Bombay and another Ishwarbhai Becharibhai and others Interveners (AIR 1962 SC 97), in which also such delegation was upheld by the Indian Supreme Court. However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires." The Legislature while making 'civil commotion' punishable under section 7‑B of the Act defined it in section 7‑A as follows:‑‑ 7‑A. Creation of civil commotion.‑‑‑‑'Civil commotion' means creation of internal disturbances in violation of law, commencement or continuation of illegal strikes, go‑slows, lock‑outs, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatha, acts of criminal trespass (illegal Qabza). " A careful reading of the above definition would show that besides I making 'creation of internal disturbances in violation of law, commencement or continuation of illegal strikes, go‑slows, and lock‑outs, vehicle snatching F or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatha, and acts of criminal trespass (illegal Qabza) have also been made punishable under section 7‑B of the Act as terrorist acts. The learned counsel for the petitioners has, however, only objected to the inclusion of internal disturbance in violation of law, commencement or continuation of illegal strikes, go‑slows and lock‑outs, as terrorist acts punishable under the Act. The expression 'internal disturbance' used in section 7‑A ibid, has not been defined. It is not known what acts would fall within the meaning of internal disturbances to make it punishable under the Act. In my view, the expression 'internal disturbances' simpliciter is vague and bears no nexus to the terrorist act unless it is elucidated further. The 'internal disturbance' may produce variety of consequences. For illustration, I may refer to G Article 232(1) of the Constitution which authorises the President to proclaim emergency if he is satisfied amongst other that the security of Pakistan or any part thereof is threatened by internal disturbance beyond the Power of a Provincial Government to control it. Therefore, the magnitude of the internal disturbances would be a determining factor for the proposed action. I am, therefore, of the view that internal disturbance in violation of law' simpliciter does not bear nexus to the object of the Act and as such its punishment in its present form under the Act, is not sustainable under the Act. I now turn to the other part of the arguments of the petitioners that commencement or continuation of the illegal strikes, lock‑outs and go‑slows could not be punished under the Act as terrorist acts. The meaning of the words strike, illegal strike, lock‑outs, illegal lock‑outs and illegal go‑slow were already known to the Legislature when it enacted the Act as these expressions were in vogue in connection with labour laws. Strike, lock‑out, illegal strikes and illegal lock‑out are defined IH respectively in clauses (xxv), (xvi), (xii) and (xi) of section 2 of the Industrial Relations Ordinance, 1969 (I.R.O.), as follows:‑‑ "(xxv) 'Strike' means cessation of work by a body of persons employed in any establishment acting in combination or a concerted refusal or refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment; "(xvi) 'Lock‑out' means the closing of a place of employment or part of such place or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional, by an employer to continue to employ any number of workmen employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and 'conditions of or affecting employment; "(xii) 'Illegal strike' means a strike declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance;" "(xi) 'Illegal lock‑out' means a lock‑out declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance;" Right to serve notice of strike by workers and lock‑out by the employer is given in section.26 of the I.R.O. as follows:‑‑ "

26. Negotiations relating to differences and disputes ‑‑‑‑(1) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent, may communicate his or its views in writing either to the Works Council or to the other party so, however, that, where the views are so communicated to the Works Council, a copy of the communication shall also be sent to the other party. (2) On receipt of the communication under subsection (1), the Works Council or the party receiving it shall try to settle the dispute by bilateral negotiations within ten days of the receipt of the communication or within such further period as may be agreed upon by the parties and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities mentioned in clause (xxiv) of section 2. (3) Where a settlement is not reached between the employer and the collective bargaining agent or, if the views of the employer or collective bargaining agent have been communicated under subsection (1) to the Works Council, there is a failure of bilateral negotiations in the Work Council, the employer or the collective bargaining agent may, within seven days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of lock‑out or strike, as the case may be, in accordance with the provisions of this Ordinance. " The period of notice of strike or lock‑out is prescribed as fourteen days in section 28 of I.R.O. Section 32 of I.R.O. deals with the right of workers to go on strike and that of employer to declare lock‑out as follows:‑‑ "32. 'Strike and lock‑out'.‑‑‑‑(1) If no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an arbitrator under section 31, the workmen may go on strike or, as the case may be, the employer may declare a lock‑out on the expiry of the period of the notice under section 28 or upon a declaration by the Conciliator that conciliation proceedings have failed, whichever is the latter. (1‑a) The party raising a dispute may at any time, either before or after the commencement of a strike or lock‑out, make an application to the Labour Court for adjudication of the dispute. (2) Where a strike or lock‑out lasts for more than thirty days the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government, if it relates to any other dispute, may, by order in writing prohibit the strike or lock‑out: Provided that the Federal Government may, with respect of a strike or lock‑out relating to a dispute which the Commission is competent to adjudicate and determine and the Provincial Government, with the previous approval of the Federal Government may, with respect to any other strike or lock‑out, by order in writing, prohibit a strike or lock‑out at any time before the expiry of thirty days, if it is satisfied that the continuance of such a strike or lock‑out is causing serious hardship to community or is prejudicial to the national interest. (3) In any case in which the Federal Government or the Provincial Government prohibits a strike or lock‑out, it shall forthwith refer the dispute to the Commission or, as the case may be, the Labour Court. (4) The Commission, or as the case may be, the Labour Court shall, after giving both the parties to the dispute an opportunity of being heard, make such award as it deems fit as expeditiously as possible but not exceeding thirty days from the date on which the dispute was referred to it: Provided that the Commission, or as the case may be, the Labour Court may also make an interim award on any matter of dispute: Provided also that any delay by the Commission, or as the case may be, the Labour Court in making an award shall not affect validity of any award made by it. (5) An award of the Commission or, as the case may be, the Labour Court shall be for such period, as may be specified in the award, which shall not be more than two years. Section 46 of I.R.O. sets out the circumstances which would render a strike or a lock‑out illegal as under:‑‑ "

46. Illegal strikes and lock‑outs.‑‑‑‑(1) A strike or lock‑out shall be illegal if‑‑ (a) it is declared, commenced or continued without giving to the other party to the dispute, in the prescribed manner, a notice of strike or lock‑out or before the date of strike or lock‑out specified in such notice, or in contravention of section 44; or (b) it is declared, commenced or continued in consequence of an industrial dispute raised in a manner other than that provided in section 43; or (c) it is continued in contravention of an order made under section 32, section 33, section 45 or subsection (3) of section 46‑A; (d) it is declared, commenced or continued during the period in which a settlement or award in operation in respect of any of the matters covered by a settlement or award. (2) A lock‑out declared in consequence of an illegal strike and a strike declared in consequence of an illegal lock‑out shall not be deemed to be illegal." Section 46‑A of the I.R.O. described the procedure for dealing with illegal strikes or lock‑outs as follows:‑‑ "46‑A. Procedure in case of illegal strikes or lock‑outs.‑‑=‑(1) Notwithstanding anything contained in any other provision of this Ordinance or in any other law for the time being in force, an Officer of the Labour Department not below the rank of Assistant Director, Labour Welfare, hereinafter in this section referred to as the Officer, may make enquiries in such manner as he may deem fit into an illegal strike or illegal lock‑out in a factory and make a report to the Labour Court. (2) After completing the enquiry the officer shall serve a notice on the employer and the collective bargaining agent or the registered trade union with the dispute to appear before the Labour Court on a date to be fixed by that Court. (3) The Labour Court may, within ten days following the day on which it receives a report under subsection (1), after considering the report and hearing such of the parties as appear before it order the strike to be called off or the lock‑out to be lifted. (4) if the employer contravenes the order of the Labour Court under subsection (3) and the Court is satisfied that the continuance of the lock‑out is causing serious hardship to the community or is prejudicial to the national interest, it may issue an order for the attachment of the factory and for the appointment of an official receiver for such period as . it deems fit, and such period may be varied from time to time. (5) The official receiver shall exercise the powers of management and may transact business, enter into contracts, give valid discharge of all money received and do or omit to do all such acts as are necessary for conducting the business of the factory. (6) The Labour Court may, in appointing and regulating the work of an official receiver exercise the power of a Civil Court under the Code of Civil Procedure (Act V of 1908). (7) If the workers contravene the order of the Labour Court under subsection (3), the Court may pass orders of dismissal against all or any of the striking workers and, notwithstanding anything contained in this Ordinance, if the Court, after holding such inquiry as it deems fit, records its finding that any registered trade union has committed or abetted the commission of such contravention, the finding shall have the effect of cancellation of the registration of such trade union and debarring all officers of such trade union from holding office in that or in any other trade union for the unexpired terms of their offices and for the terms immediately following: Provided that the Court may review its order if good and sufficient cause is shown by an affected worker within seven days of such orders of dismissal. (8) Subject to any rule made by the Provincial Government in this behalf, the Officer may, for the purpose of enquiry under subsection (1), within the local limits for which he is appointed, enter with such assistants, if any, being persons in the service of Pakistan, as he thinks fit, in a factory where he has reason to believe an illegal strike or lock‑out to be in progress, and make such examination of the premises and plant and of any register maintained therein and take on the spot or otherwise such evidence of persons and exercise such other powers as he may deem necessary for carrying out the purposes of this section. (9) The Officer shall have authority to call any party to such dispute to his office or secure his presence in the factory and shall also have the power to bind any party to the dispute to appear before the Labour Court. (10) Where a party to an illegal .strike or lock‑out, on being required or bound under this section to appear before the officer or the Labour Court does not so appear, the Officer or Labour Court, as the case may be, besides taking such other action as may be admissible under this Ordinance, proceed ex parte." Section 59 of the I.R.O. which provided for punishment for taking part in or instigating go‑slow, was omitted by Act No.XVI of 1975, dated M 10‑12‑1975, reads as follows:‑‑ "

59. Whoever takes part in, or instigates or incites others to take part in, or otherwise acts in furtherance of, a go‑slow shall be punishable with imprisonment for' a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both: Explanation.‑‑‑‑In this section, 'go‑slow' means an organised, deliberate and purposeful slowing down of normal output of work by a body of workmen acting in a concerted manner, but does not include the slowing down of normal output of work which is due to mechanical defect, breakdown of machinery, failure or defect in power in supply or. in the supply of normal materials and spare parts of machinery." From the above‑referred provisions of I.R.O., it is quite clear that right to go on strikes or to declare lock‑outs are the normal rights of the I workers and employers respectively which are regulated under I.R.O. Similarly, the procedure to deal with illegal strikes by workers and declaration of illegal lock‑outs by employers arc dealt with under section 46‑A of I.R.O. and disobedience of the order passed under section 46‑A are made punishable under section 56 of I.R.O. In the same manner, go‑slow which was punishable under section 59 of the I.R.O. is no more an offence after omission of section 59 of the I.R.O. In these circumstances, it is difficult to agree with the contention of the learned Deputy Attorney‑General that continuation of illegal strikes, lock‑outs and go‑slows amounts to terrorism or a terrorist act, which could be punished under the Act. Illegal strikes, lock‑outs and go‑slows as defined under I.R.O. in my view, bear no nexus with terrorism or terrorist act and as such, the same could not be made punishable under the Act. In the absence of the definition if illegal strike, illegal lock‑outs or illegal go‑slows which establish nexus of these acts with terrorism or a terrorist act, as defined in the Act, the same could not be made punishable under the Act. (Sd.) SAIDUZZAMAN SIDDIQUI, C.J. M.B.A./J‑34/S Order accordingly.