P L D 2011 Lahore 145 (PLP)

SH. AHMAD FAROOQ, J.

Through this single order, we intend to dispose of Writ Petitions Nos.14617 of 2010, 21672 of 2010, 22103 of 2010, 21661 of 2010 and 22192 of 2010, as an identical question of fact and law is involved in these petitions.

2. The facts, necessary for the adjudication or the lis in hand, are that the names of all the petitioners, who have filed the aforementioned writ petitions, were incorporated in the 4th Schedule of the Anti-Terrorism Act, 1997 during the period, starting from 2004 to 2007, i.e. more than three years ago, and they were required to execute a bond for keeping good behaviour to the satisfaction of the District Police Officer of the concerned territorial jurisdiction. The petitioners contended that according to section 11EE of the Anti-Terrorism Act, 1997, only the names of those persons could be inserted in the 4th Schedule, who are activists, or office-bearers of any proscribed organization, or involved in sectarian activities. The petitioners claimed that their names have been entered in the 4th Schedule without any tangible and confidence-inspiring evidence. They denied that they are office bearers of any proscribed organization or involved in any manner in sectarian activities. The petitioners asserted that insertion of their names in the 4th Schedule for a period more than three years, is not only against the provisions of section 11 of the Anti-Terrorism Act, 1997, but also violative of Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioners have prayed that their names may be ordered to be deleted from the list, prepared under the 4th Schedule or Anti-Terrorism Act, 1997. Hence, these petition.

3. The learned counsel for the petitioners contended that there was no cogent evidence against the petitioners, which could justify the inclusion of their names in the 4th Schedule of the Anti-Terrorism Act, 1997. They argued that the inclusion of the names of the petitioners in the list in question beyond a period of three years, is violation of the provisions of section 11EE of the Anti-Terrorism Act, 1997. They further argued that it is inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law, as guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973.

4. Conversely, the learned Additional Advocate-General, Punjab resisted these petitions, on the plea that most of the petitioners did not file appeal before the Provincial Government, as provided in subsection (3) of section 11EE of the Anti-Terrorism Act, 1997. However, he admitted that petitioner/Muzammil Hussain has filed an appeal, which has not been decided so far. He contended that the sufficient evidence was provided by the law enforcement agencies to prove that the activities of the petitioners are prejudicial to public safety, Maintenance of Public Order and Sectarian Harmony. He asserted that the names of the petitioners were rightly incorporated in the list, prepared according to 4th Schedule of the Anti-Terrorism Act, 1997. Lastly, he argued that lack of conviction in a criminal case would not conclusively prove that the petitioners did not have links with the proscribed organization.

5. We have heard the learned counsel for the petitioners as well as the learned Additional Advocate-General, Punjab, in addition to examining the available record.

6. Prior to determining the validity of the inclusion of the names of the petitioners in the 4th Schedule for a period exceeding three years, it would be advantageous to reproduce section 11EE of the Anti-Terrorism Act, 1997 hereunder for facility of reference:-- "11EE. Security for good behaviour.

(1) Whenever the Federal or Provincial Government or an information received from any source that any person is an activist, office-bearer or an associate of an organization kept under observation under section 11D or proscribed under section 11E, or in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism, such Government may notify the name of such person or persons in a list entered in the Fourth Schedule. (2) Where a person's name is listed in the Fourth Schedule, the Federal or Provincial Government, as the case may be, without prejudice to any other action which may lie against such person under this Act or any other law for the time being in force, may take following actions and exercise following powers, namely: (a) require such person to execute a bond with one or more sureties to the satisfaction of the District Police Officer in the territorial limits of which the said person ordinarily resides, or carries on business for his good behaviour and not to involve in any act of terrorism or in any manner advance the objectives of the organization referred to in subsection (1) for such period not exceeding three years and in such amount as may be specified."

7. A careful examination of the above quoted provisions of section 11EE of the Anti-Terrorism Act, 1997, make, it abundantly clear that there are certain prerequisites for inclusion of the name of a person in a list, prepared according to 4th Schedule of the Anti-Terrorism Act, 1997, e.g. concrete material and cogent reason to, prima facie, establish that the person is an activist, office-bearer or an associate of a proscribed organization, or an organization suspected to be involved in terrorism or sectarianism. Secondly, the material or information, placed before the concerned Government, should be of such nature, which could satisfy a reasonable person for making the necessary entry in the 4th Schedule. The foremost requirement is that the competent authority must prove the legality of the order. This Court in the case Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others (PLD 2005 Lahore 370) has held that the availability of an alternative remedy by way of preferring an appeal to the concerned Government, cannot oust the constitutional jurisdiction of this Court when the representative of the Government has already expressed his views in the parawise comments, justifying the impugned action, and particularly, when the statutory period of impugned order has expired. Notwithstanding the absence of tangible or confidence inspiring material justifying the inclusion of the names of the petitioners in the 4th Schedule, no person, whose name has been entered in the 4th Schedule, could legally be required to execute a bond with sureties for a period exceeding three years, as envisaged in section 11EE(2)(a) of the Anti-Terrorism Act, 1997. The names of the present petitioners stand in the list, prepared according to 4th Schedule of the Anti-Terrorism Act, 1997 for a period exceeding three years, which is violative of the restriction, imposed on the concerned Government, as provided in section 11EE(2)(a) of the Anti-Terrorism Act, 1997. Needless to mention here that the inclusion of the name of a person in the 4th Schedule for an indefinite period, is not only against the relevant provisions of law, but, also a flagrant violation of the inalienable right of a citizen to enjoy the protection of law and to be treated in accordance with law, as enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Hence, we are of the considered view that the retaining the names of the present petitioners in a list, as mentioned in the 4th Schedule of the Anti-Terrorism Act, 1997, prepared more than three years earlier, is not in accordance with law and the same cannot be sustained. Consequently, the respondents are directed to delete the names of the petitioners from the 4th Schedule of the Anti-Terrorism Act, 1997. The instant petitions are accordingly accepted. M.H./B-26/L Petition allowed.