P L D 2007 Quetta 25 (PLP)

AKHTAR ZAMAN MALGHANI, J.

The petitioner has challenged validity of office memorandum dated 15th July, 2006 issued by Ministry of Interior, Government of Pakistan and notification dated 17th July, 2006 of Ministry of Finance, whereby; bank accounts of the petitioner were freezed.

2. Briefly stated, facts of the case are that the petitioner who is sitting Senator was maintaining two accounts i.e. 096084 (PLS) and 50026-8 with respondents No.4 and 5 respectively. On 22-7-2006 he presented two cheques amounting to Rs.20,000 and Rs.1,00,001) to respondents Nos.4 and 5 for encashment which were returned with the remarks "Accounts freezed by a competent Authority". According to the petitioner action of freezing his accounts was illegal and without lawful authority as there was no material available with the competent authority to show that the petitioner was member of proscribed organization or was associated with it in any manner.

3. We have heard the learned counsel for the petitioner. Standing Counsel and counsel for respondents Banks. Learned counsel for the petitioner vehemently contended that the allegations of respondents being member of proscribed organization Balochistan Liberation Army (BLA) are based on no evidence, therefore; his accounts could not have been freezed by exercising powers under Anti-Terrorism Act, 1997. He next contended that the petitioner is sitting member of Senate of Pakistan and could not be imagined that he would be associated with a proscribed organization. It was next argued by the learned counsel that the respondents could not deprive the petitioner of his lawful and legitimate money in violation of Articles 18,23 and 24 of the Constitution as such, impugned notifications are liable to be declared as unlawful.

4. On the other hand, the learned Standing Counsel vehemently contended that the accounts of petitioner were freezed under the provisions of Anti-Terrorism Act, 1997 which empower the government to freeze accounts of any organization or person who is affiliated/associated with the proscribed organization, having reasons to believe that the petitioner was affiliated/associated with B.L.A. which was declared proscribed organization. In support of his arguments he referred to the parawise comments submitted by respondent No.1. Learned counsel for respondents banks argued that under the law they were bound to follow instructions issued by State Bank of Pakistan.

5. We have carefully considered the contentions put forth by the parties' learned counsel. Before embarking upon discussion, we find it just and appropriate to reproduce the impugned notification dated 17th July, 2006, whereby; accounts of petitioner as well as other individuals were freezed. It reads as under:-- "I am directed to the above subject and to say that under the Ministry of Interior's S.R.O. No. F.7/26/2001-Pol1.1(3) dated 17th April, 2006 and O.M. No. 7/26/2001-Pol1.1(3) dated 15-7-2006 (copies enclosed), the Balochistan Liberation Army (B.L.A.) has been proscribed as an entity involved in terrorism under Anti Terrorism Act. 1997 subsection (1) of section 11B read with section 11 E and section 11H of the Anti-Terrorism Act, 1997 (XXXVII of 1997-as amended) provides the powers to the State Banks of Pakistan or any other Federal or Provincial authority authorized in this regard to freeze the Accounts of proscribed organizations. The individuals list enclosed, received from the Ministry of Interior are affiliated/associated with the Balochistan Liberation Army (B.L.A.).

2. State Bank of Pakistan is accordingly requested to issue necessary instructions immediately to all concerned for Freezing of Accounts of the individuals (list enclosed) affiliated/associated with the Balochistan Liberation Army. (Sd.) (Syed Abdur Rashim Shah) Section Officer. Aforesaid notification was issued in pursuance to direction contained in office memorandum dated 15th July, 2006 issued by Ministry of Interior requesting Ministry of Finance to ask State Bank of Pakistan or any other Federal or Provincial authority duly authorized to exercise power conferred by subsection (1) of section 11B read with section 11E and section 11H under the Anti-Terrorism Act, 1997 (as amended). Section 11B of the Anti-Terrorism Act, 1997 enables the Federal Government to proscribe certain organizations upon reasons to believe that they were involved in terrorism, whereas; section 11E empowers to seal office and freeze accounts, if any, of proscribed organization and section 11H makes it an offence punishable under section 11H for any person who invites another to provide money or other property and intends that it should be or has reasonable cause to suspect that it may be used for the purpose of terrorism or receives money or property and intends that it should be used or has reasonable cause to suspect that it may be used for the purpose of terrorism. Similarly; a person commits an offence within the meaning of subsection (3) of section 11H who provides money or the property and knows or has reasonable cause to suspect that it will or may be used for the purpose of terrorism. Upon conviction under the aforementioned offences the Anti-Terrorism Court has been conferred under section 11Q with the power to forfeit any money or other property which, at the time of offence, he had in his possession or control. Thus; under the scheme of law as narrated above the Federal Government or competent authority has been authorized under section 11E to freeze the accounts of proscribed organization and not of individuals who suspected to be affiliated or associated with such proscribed organization. For individuals separate procedure has been laid down in sections 11-O and 11-Q, wherein; only Anti-Terrorism Court has been authorized to forefeit the money or other property of individuals upon their conviction under section 11-H of the Act. Admittedly; in the instant case bank accounts of the petitioner were not forfeited by the Anti-Terrorism Court nor he was tried or convicted by the Court but under the impugned notification issued by Ministry of Finance on the request of Interior Ministry by exercising the powers purportedly under section 11-E of the Act, 1997, which as already observed does not confer powers on the Federal Government or any other authority to freeze account of an individual. Similarly; name of the petitioner has been included in the list of individuals affiliated/associated with proscribed organization B.L.A. through office memorandum issued by Ministry of Interior on 15th July, 2006 which reads as under:- "The undersigned is directed to refer to Ministry of Finance, Government of Pakistan, Islamabad U.O No. 212-AFS (EF&P)/2006 dated 1-7-2006 on the subject cited above and to say that the Federal Government has proscribed the Balochistan Liberation Army (B.L.A.) vide this Ministry's Notification No.7/26/2001-Poll.1(3) dated 7th April, 2006 as an entity involved in terrorism. We have reasons to believe that the individuals listed in the Annexure are affiliated/associated with Balochistan Liberation Army (B.L.A.).

2. It is, therefore, requested that in exercise of the power conferred by subsection (1) of section 11B read with section 11E and Section 11H under the Anti-Terrorism Act 1997 (XXXVII of 1997 as amended) the State Bank of Pakistan or any other Federal or Provincial Authority duly authorized in this regard under the law for the time being in force may be asked to freeze the accounts of the individuals listed in the Annexure-1. (Sd.) Muhammad Nasir Section Officer It is evident from the above reproduced notification that it was issued by the Ministry as they have reasons to believe that the petitioner and other individuals mentioned in the list were affiliated/associated with the proscribed organization. Probably the words "reasons to believe" have been borrowed from section 11-B which provides that an organization is proscribed if the Federal Government, having reasons to believe that an organization is concerned is terrorism, by order, lists it in the First Schedule. "Belief" being a conviction of the mind arising not from the actual reason or knowledge but by way of inference of evidence received or information derived from others. It falls short of an "absolute" certainty (PLD 1952 FC 19 referred), therefore; the term "reasons to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reasons to believe" as observed by the Hon'ble Apex Court in the judgment reported in PLJ 1995 SC

396. Right to acquire, hold and dispose of property has been protected under Article 23 of the Constitution of Islamic Republic of Pakistan which could not be taken away or curtailed on mere presumption. No material was placed before us or appended with the rejoinder to the petition from which it could be inferred that the petitioner was in any manner associated/affiliated with the proscribed organization. He is sitting member of Senate elected on the seat of a political party, otherwise; he would have been disqualified to be member of Senate being affiliated/associated with a proscribed organization. But so far no action has been taken against him under section 11-F Anti-Terrorism Act, 1997 which provides punishment for a person who belongs or professes to belong to a proscribed organization, therefore; it is hard to believe that he was associated/affiliated with the proscribed organization B.L.A., as such; the impugned notifications to the extent of petitioner are not sustainable in the eyes of law. For the foregoing reasons, we are inclined to allow this petition and declare that directions of respondents Nos.1 to 3 to freeze accounts of the petitioner are without lawful authority and of no legal effect. Accordingly; respondents Nos.4 and 5 are directed to honour the cheques and make payment. Petition is disposed of accordingly. H.B.T./40/Q Petition allowed.