Proscription of persons

2022 YLR 217 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 3Anti-Terrorism Act (XXVII of 1997), Ss. 11-EEE, 11-EE & Fourth Sched.Constitution of Pakistan, Art. 199Constitutional petitionPower to arrest and detain suspected personsProscription of personsScope

Petitioners challenged three separate preventive detention orders (PDOs) issued by the Provincial Government for a period of three months one after the other and a notification placing the names of petitioners on the Fourth Sched. of the Anti-Terrorism Act, 1997

Validity

Petitioners were earlier convicted for the kidnapping and murder of an American journalist, however, later on except one all were acquitted

Upon announcement of the acquittal order, the Government issued successive PDOs

Petitioners, for the last 18 years, had been in jail either as under trial prisoners or convicts

During this time no material had come on record that any of the petitioners were associating themselves with any banned organization or proscribed person through prison visits, intercepts, video recordings, etc.

If the petitioners were regarded so dangerous terrorists then why were their names not put on the Fourth Sched. prior to the abduction and murder in the year 2002

Names of petitioners were only placed on the Fourth Sched. to justify their detention under S.11-EEE, Anti-Terrorism Act, 1997, despite there being no material before the Provincial Government to show that any of the petitioners belonged to a banned organization or would involve himself in terrorist acts on his release

Even the reasons for placing the names of petitioners on the Fourth Sched. were spurious and without justification

Third Preventive Detention Order (PDO) was struck down as being illegal and issued without lawful authority

Notification placing the petitioners in the Fourth Sched. was also struck down as having been issued without lawful authority and on account of mala fides

Petitioners were directed to be released forthwith and were not to be detained under any further PDO without the permission of the High Court

Constitutional petition was allowed, in circumstances.

2022 YLR 217 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 3Anti-Terrorism Act (XXVII of 1997), Ss. 11-EEE, 11-EE & Fourth Sched.Constitution of Pakistan, Arts. 199 & 10Constitutional petitionSafeguards as to arrest and detentionPower to arrest and detain suspected personsProscription of personsEnemy alienScope

Petitioners challenged three separate Preventive Detention Orders (PDOs) issued by the Provincial Government for a period of three months one after the other and a notification placing the names of petitioners on the Fourth Sched. of the Anti-Terrorism Act, 1997

Argument of Government was that all the petitioners were “enemy aliens” and as such Art. 10 of the Constitution was not applicable to them

Validity

“Enemy aliens” were a class of persons who were not nationals in the State in which they were residing and their State of origin was in a declared war with the State where they were residing

Such would indicate persons who might have been nationals of the State but had their origin in the State with which the State they were currently residing in was at war

All the petitioners were Pakistani nationals

One of the petitioners held dual nationality, however whilst he was in Pakistan his Pakistani nationality prevailed over his other nationality

Petitioners, at best, were terrorists/ militants who at this point in time were not proven to belong to any banned organization in Pakistan

Pakistan was not involved in any declared international armed conflict nor in any declared internal armed conflict

Pakistan was fighting groups which could be described as insurgents, terrorists and/or militants mainly of an internal nature

Petitioners were declared to be not “enemy alien” and as such Art. 10(9) of the Constitution was not applicable to any of them

Constitutional petition was allowed, in circumstances.

2017 PLD 23 PESHAWAR-HIGH-COURT Judicial Precedent

S. 11-EE & Fourth Sched.Security for good behaviourProscription of personsParameters

Liberty of the citizens cannot be curtailed merely on presumptions, satisfaction, as described under S.11-EE of Anti-Terrorism Act, 1997, would be objective in nature and not subjective

Authorities are not to act on whims and caprices without there being any material before them in support of grounds for placing name of a person in Fourth Sched. of the Act.