2014 PLP 1308 (MLD)

The petitioner through the instant constitutional petition seeks a direction to respondent No.1 for deletion of his name from the list prepared under Fourth Schedule (section 11-EE) of the Anti-Terrorism Act. 1997.

2. Precisely the facts giving rise to this petition are that the petitioner's name was earlier placed in the Fourth Schedule of Anti-Terrorism. Act, 1997 in year 2005; thereafter, he filed Writ Petition No.21322 of 2010, which was accepted by this Court vide order dated 29-11-2010 and the Home Department was directed to delete his name from the said list, which was so done by them on 3-1-2011; thereafter, his name was again placed in the said Schedule on 30-10-2013 on the basis of a report submitted by the District Intelligence Committee, Hafizabad. Hence, the instant petition.

3. Learned counsel for the petitioner contends that the petitioner's name has been enlisted again iti the Fourth Schedule vide order dated 30-10-2013 passed by respondent No.1, without any fresh stuff, rather on the same material, as used earlier for placing his name in the said category, hence, it may be declared illegal and set aside.

4. Learned Assistant Advocate General Punjab concedes that the name of the petitioner remained enlisted in the Fourth Schedule for more than five years in the first instance, which was deleted on 3-1-2011 after his constitutional petition was allowed by this Court vide order dated 29-11-2010; further submits that fresh enlistment of the petitioner in the Fourth Schedule has been made on 30-10-2013, under newly formulated recommendations of the District Intelligence Committee (DIC), Hafizabad, and law enforcing agencies have serious apprehensions that he would involve himself again in activities, prejudicial to public safety, security integrity of the country or maintenance of public order etc.; the appeal filed by the petitioner against the impugned order was dismissed on 10-3-2014 by respondent No.l.

5. After hearing learned counsel for the parties and perusing the record, it is noticed that the petitioner's name, for the first time, was placed in the Fourth Schedule of Anti-Terrorism Act, 1997 in year 2005 with the objection/allegation that he was involved in such activities, which were highly prejudicial to public safety, harmony, peace, tranquility, and coexistence, which lasted for more than five years i.e. almost twice the period as envisaged by the law. He filed a constitutional petition (W.P.No.21322/2010) against the above said order, which was accepted by this Court on 29-11-2010 with a direction to the respondent(s) to delete his name from the said list. The direction of this Court was complied with on 3-1-2011 by the respondent concerned, who clamped aforesaid restrictions on him again on 30-10-2013 on the basis of a so-called fresh report from the DIC, Hafizabad. In fact, respondent No.1 harped on the same string while re-enlisting the name of the petitioner in the said Schedule and there was nothing new, which might justify his action for having done so.

6. Learned Assistant Advocate General Punjab has produced a copy of case-F.I.R. No.651, dated 20-12-2013, under section 188, P.P.C. registered at Police Station Saddar Hafizabad to show that the petitioner was still an activist of Sipah-e-Sahaba Pakistan and he had not learnt a lesson from his previous enlistment in the Fourth Schedule (supra). Sarcastically, the text of this F.I.R. reveals that the petitioner's real mother died on 17-12-2013 and her last rituals were attended to by Maulana Muhammad Ilyas Ghumman and Rana Jamshed Tabassum alias Bambo, the followers of Dev-Bund school of thought, besides others. Did it show that the petitioner had a nefarious liaison with the said A participants, the answer to which would certainly be in negative. Who can stop the mourners from participating in the funeral rituals of a deceased person? Our religion, however, does not identify any such precedence to quote, so as to justify such a prohibition. The above said allegation is bizarre as well as ridiculous, which should not burden the petitioner with any sort of liability under section 188 P.P.C. Barring F.I.R. No.651/13(supra), there exists no other material whatsoever, which may be considered incriminating against the petitioner. It, however, remains a fact that the above said case was registered about one and half month after the impugned order was passed. We have not come across any such material against the petitioner, which may be considered fresh and which might have necessitated re-enlistment of his name in the Fourth Schedule of the Act (ibid) on 30-10-2013. All other circumstances mentioned in "fresh DIC report" existed on the record on 29-11-2010 when Writ Petition No.21322 of 2010 (supra) was allowed by this court and resultantly his name was deleted from the oft-repeated Fourth Schedule of Anti-Terrorism Act 1997. What wrong was committed by the petitioner between 29-11-2010 to 30-10-2013 is a question, to which the respondents do not have any plausible answer to offer. No one can be enlisted in the Fourth Schedule merely on the whims and guess-work of the authorities concerned nor liberty/freedom of a man can be curtailed on lame excuses or on baseless pretexts. In such a scenario, the courts cannot sit idle and it is their bounden duty being custodian of law to jealously guard the fundamental rights of the citizens as enshrined in the Constitution of Islamic Republic of Pakistan, 1973.

7. There is no cavil to the proposition that the name of a person can be placed repeatedly in the Fourth Schedule, if some fresh evidence or material so envisages, but in the instant case, re-enlistment of the name of the petitioner in the said Schedule appears to have been made with ulterior motives, which, being illegal, cannot be approved of under any circumstance.

8. In view of the above, we are satisfied that retaining the name of the petitioner for another period of three years is a mala fide act of the respondent-government functionaries, which practice cannot be allowed to continue unabatedly. Consequently, the instant petition is allowed and the respondents are directed to delete the name of the petitioner from the Fourth Schedule of the Anti-Terrorism Act, 1997 forthwith. ARK/J-7/L Petition allowed.