1998 PLP 1156 (SCMR)

(a) Anti‑Terrorism Act (XXVH of 1997)‑‑‑ ‑‑‑‑S. 5(2)(i)‑‑‑Use of Armed Forces and Civil Armed Forces to prevent terrorism‑‑‑Provision of S.5(2)(i), Anti‑Terrorism Act, 1997 is 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‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (b) Anti‑Terrorism Act (XXVH of 1997)‑‑‑ ‑‑‑‑S. 10‑‑‑Power to enter or search‑‑‑Provision of S.10 of Anti‑Terrorism Act, 1997, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon a premises which is suspected to have material or a recording in contravention of S.8 of the said 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‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (c) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 19(10)(b)‑‑‑Constitution of Pakistan (1973), Art.10‑‑‑Procedure and powers of Special Court‑‑‑Provision of S.19(10)(b), Anti‑Terrorism Act, 1997, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Art. 10 of the Constitution of Pakistan (1973) and thus invalid‑‑‑Such declaration by Supreme Court, however, will not affect the, trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (d) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 24‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Appellate Tribunal‑‑‑Provision of S.24 of the Anti‑Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution‑‑‑Section 24 of the Act needs to be suitably 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 "‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (e) Anti‑Terrorism Act (XXVH of 1997)‑‑‑ ‑‑‑‑S. 25‑-‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Appeal‑‑ Provision of S.25 of the Anti‑Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution‑‑‑Section 25 of the Act needs to be suitably 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"‑‑ Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (f) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 27‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Punishment for defective investigation‑‑‑Provision of S.27 of the Anti‑Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and needs to be suitably amended so as to vest power in 'a "High Court" instead of "Appellate Tribunal"‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (g) Anti‑Terrorism Act (XXVH of 1997)‑‑‑ ‑‑‑‑S. 28‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Transfer of cases‑‑‑Provision of S.28 of the Anti‑Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution‑‑‑Section 28 of the Act needs to be amended as to vest power of transfer of cases in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (h) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 30‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Modified application of certain provisions of the Criminal Procedure Code, 1898‑‑ Provision of S.30 of the Anti‑Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution‑‑‑Section 30 of the Act needs to be suitably amended so as to vest the appellate power in a High Court instead of Appellate Tribunal and word "High Court" be substituted for "Appellate Tribunal "‑‑‑Such declaration by Supreme Court, however, will not affect the trials alread3, conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (i) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 37‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Contempt Court‑‑‑Provision of S.37 of the Anti‑Terrorism Act; 1997 is not valid present form as the same militates against the concept of independence Judiciary and Arts.175 & 203 of the Constitution‑‑‑Section 37 of the Act needs to be amended suitably so as to vest power to punish for contempt in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal" ‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (j) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 26‑‑‑Constitution of Pakistan (1973), Arts. 13(b) & 25‑‑‑Admissibility of confession made before Police‑‑‑Provision of S.26 of the Anti‑Terrorism Act, 1997 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 and is violative of Arts. 13(b) & 25 of the Constitution‑‑‑Section 26 of the said Act, thus, requires to be suitably amended by substituting the words "by a Police Officer not below the rank of a Deputy Superintendent of Police" with the words "Judicial Magistrate" ‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (k) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑Sched. & Ss.6, 7 & 8‑‑‑Terrorist act‑‑‑Punishment for terrorist act‑‑ Prohibition of acts intended or likely to stir up sectarian hatred‑‑‑Offences mentioned in the Sched. to the Anti‑Terrorism Act, 1997 should have nexus with the objects mentioned in Ss. 6 7 & 8 of the Act‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (l) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 35‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Power to make rules‑‑‑Provision of S.35 of the Anti‑Terrorism Act, 1997 in its present form is. not valid as the same militates against the concept of independence of Judiciary and is also violative of Arts. 175 & 203 of the Constitution‑‑‑Section 35 of the said Act 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‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. (m) Anti‑Terrorism Act (XXVII of 1997)‑‑‑ ‑‑‑‑S. 14‑‑‑Compositon and appointment of Presiding Officers of Special Courts‑‑‑Provision of S.14 of the Anti‑Terrorism Act, 1997 requires to be amended so as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of Judiciary‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. Syed Iftikhar Hussain Gilani, Advocate Supreme Court and Mehr Khan M. Ismail Qureshi, Advocate Supreme Court for the Complainant (in C. P. No. 1129 of 1997).