Proscription of person

2024 PLD 115 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.11-EEConstitution of Pakistan, Arts. 18 & 199Constitutional petitionProscription of personFreezing of bank account and imposing travel restrictionsPre-condition

Petitioners/accused persons were aggrieved of freezing/blocking of their bank accounts; placing them in watch list and imposing restrictions on their travel for having connections with a proscribed organization

Validity

Provision of S. 11-EE of Anti-Terrorism Act, 1997, prescribed "reasonable ground to believe" standard to impose sanctions

Powers under S. 11-EE of Anti-Terrorism Act, 1997, were exercisable subject to condition that the authority must take into account all relevant facts and circumstances to form an opinion

Such opinion must be based on information received from any credible source which should be authentic and not just mere suspicion

There must evidence to establish reasonableness

The ground should be communicated to the person within three days

Authority was required to place entire material before the Court

State functionaries while discharging official functions were to ensure that no one was denied right to earn livelihood

Word "lawful" used in Art. 18 of the Constitution qualified right of a citizen in relevant field

High Court set aside freezing/blocking of accounts of petitioners as the same were illegal and void ab initio and petitioners could not be prohibited from doing lawful business

Constitutional petition was allowed accordingly.

2024 PCrLJ 1875 PESHAWAR-HIGH-COURT Judicial Precedent

S. 11EE, & Fourth Sched.General Clauses Act (X of 1897), S.24-AProscription of personPlacing name of an accused in Fourth Sched. to the Anti-Terrorism Act, 1997, by the Provincial GovernmentScope

Application of the petitioner that his name be excluded/deleted from Fourth Sched. of Anti-Terrorism Act, 1997, was refused

Validity

In the present case, the respondents had failed to provide any valid reason or justification for placing the name of the petitioner/appellant in Fourth Sched., whereas the only evidence available with the respondents was that there were many criminal cases registered against the petitioner, but perusal of the record revealed that the petitioner had not been convicted in any of the criminal case, rather in most of the cases, he had been acquitted of the charge, therefore, there was no justification with the respondents for placing the name of the petitioner in the Fourth Sched. of Anti-Terrorism Act, 1997

Respondents had failed to place on record any material to show that the petitioner was a member of the proscribed organization or involved in terrorist funding

Respondents had failed to justify any ground which made the basis of Notification dated 25.08.2021 for placing the name of the petitioner under S.11-EE in Fourth Sched. of Anti- Terrorism Act, 1997

Pre-requisites for placing the name of the petitioner in the Fourth Schedule had not been fulfilled and it seemed that the impugned Notification was unreasonable and had been passed without application of mind, whereas, under S.24-A of the General Clauses Act, the public functionaries were bound to exercise jurisdiction in good faith and in a reasonable manner

Constitutional petition was allowed by setting aside the impugned Notification.

2024 PCrLJ 1298 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 11EE (4), 21-L & Fourth Sched.Constitution of Pakistan, Part. II, Chapt. 1Proscription of personFundamental rightsScopeAccused placed in Fourth Schedule to the Anti-Terrorism Act, 1997Sanctions so reflected apparently were against the fundamental rightsFundamental rights are regulated through statutory law

When fundamental right is abridged through statutory law, utmost care and caution should be exercised to evaluate the information/material against the delinquents

Such action must not be an exercise in vacuum or routinely venture based on whims, wishes or conjectures of the authority to move blindly and run over the guaranteed fundamental rights

After imposition of such sanctions, person becomes handicapped to run his life honourably and smoothly

For subsistence and spending his life, person becomes dependent upon the discretion of the Federal Government, and he is to take refuge in that respect under S.11-OO of the Act

In addition, the person enlisted in Fourth Schedule is required to execute a bond for certain restriction upon his freedom of movement, right to reside at a particular place, deprivation from entertainment and amusement, curtailment of liberty including check and probe on their assets or assets of his family members including parents, being under constant monitoring or surveillance; so much so he can be arrested and detained under S.11-EEE of Anti-Terrorism Act, 1997, as and when the government desires

Section 11-EE of the Act, 1997, though enumerated different situations attracting liability for the persons to be enlisted in Fourth Schedule but use of words "reasonable grounds" in the section required evaluating the material/information within that scope

Reasonable grounds flow from the information available or collected against the delinquents and such information was usually derived from the links propagated through many types of material including SMS/voice messages, messages on WhatsApp or other social media accounts, pamphlets/handouts, posters, photographs, painting, caricatures, books/literature, newspapers, audio/video CDs, electronic and digital material, wall chalking, banners/pena flex, demonstrations in rallies, material on Facebook, Twitter or any other social media account, communication on telephone/mobile (CDR), speeches in public meetings, radio and T.V. shows, surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution etc.

Authority before enlisting any person in Fourth Schedule must ensure that information be available in more than one forms as highlighted above so as to make it credible and be more than a suspicion

Court asked specific questions from the Law Officer whether he had any record with him which could establish links of the present appellant with any proscribed organization or he could show the Court any material like visuals or audio by which it could be seen or heard that appellant was engaged in any objectionable activities but no such material could be produced or shown to the Court

When asked to explain the reasons for placing appellant's name in the Fourth Schedule of the Act, 1997, Law Officer contended that appellant remained involved in one criminal case

Involvement in any criminal case is hardly a ground to deprive any citizen of his fundamental right of life and liberty

Record once at the credit of an accused can not be used to rotate him in such allegations again without any fresh material in that respect

Appeal was allowed, in circumstances.

2024 PCrLJ 183 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 11EE(4), 21-L & Fourth Sched.Constitution of Pakistan, Art. 10ACriminal Procedure Code (V of 1898), Ss. 512, 87 & 88Proscription of personConviction in absentiaFair trialScopeAccused placed in Fourth Schedule to the Anti-Terrorism Act, 1997, violating terms of his bond by absconding

Prosecution case was that the name of accused was placed on the list of Fourth Schedule of the Anti-Terrorism Act, 1997, however, by violating the terms and conditions of the surety bonds submitted by him, he proceeded to foreign country and shifted there

Trial of the accused was carried out in his absence

Perusal of the record reflected that the personal attendance of the accused was not dispensed with rather he was tried and convicted in absentia without pleader of his own choice

Right to be represented by counsel of own choice was given by the Constitution of Pakistan, under Art. 10(1)

Further, there was possibility that the accused did not deliberately evade the process of criminal justice system, because his failure to appear before the trial Court, as and when required by the Trial Court, was due to lack of knowledge or some other reasons beyond his control

Even otherwise, if it was assumed that as a means to circumvent the process of criminal justice system, the accused deliberately absconded, even in that eventuality he could not have been tried and convicted in absentia

Rather, Trial Court could merely record evidence against him as envisaged under S. 512, Cr.P.C., after satisfying itself by adhering to the provisions of Ss. 87/88, Cr.P.C., that the accused had, in fact, absconded himself and there was no likelihood of his joining the trial proceedings in near future

Purpose of S. 512, Cr.P.C., was merely to preserve the evidence of a witness for an eventuality where protection was given to the deposition of such witness who might not be alive at the time of appearance of the accused or might have become incapable of giving evidence or attendance of said witness could not be procured without any delay, expense or inconvenience

Trial conducted in absentia violated both constitutional guarantees enshrined under Arts. 4, 8, 9, 10 & 10A of the Constitution of Pakistan, and principles of natural justice

Thus, the trial of the accused in absentia was illegal, unwarranted and of no legal effect

Hence, appeal was allowed by setting aside impugned judgment and case was remanded to the Trial Court for its retrial in accordance with the law.

2023 YLR 661 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 11-EEConstitution of Pakistan, Arts. 4 & 5Proscription of personRight of individuals to be dealt in accordance with lawLoyalty to State and obedience to Constitution and lawScope

Appellant's appeal was directed against order passed by Federal Government whereby his review application against inclusion of his name in Fourth Schedule of Anti-Terrorism Act, 1997 was dismissed

Validity

Executive power given to Federal Government had to be checked and when it effected the free mobility of the persons, it must be ensured that it was not exercised arbitrarily

Obedience to the State and the applicable law was undoubtedly a basic duty of every citizen of the country under Art. 5 of the Constitution

Likewise, it was also responsibility of the State to keep watch on the suspected persons for the purpose of monitoring their good conduct and if no adverse facts were brought to the knowledge of the authorities, they must not be haunted by previous conduct

Admittedly, during previous seven years, the appellant had not been involved in any criminal activity and had lead a life of a dutiful citizen, therefore, automatic inclusion of his name in Fourth Schedule consecutively for 3rd time was not protected under Art. 4 of the Constitution

Appellant's name was inserted in the Fourth Schedule without any adequate ground, which was not sustainable

Appeal was allowed and the impugned orders were set aside.

2022 SCMR 1185 SUPREME-COURT Judicial Precedent

Ss. 11EE(4), 21-L & Fourth Sched.Proscription of personAccused placed in Fourth Schedule to the Anti-Terrorism Act, 1997 violating terms of his bond by abscondingReappraisal of evidence

Subsection (4) of section 11EE of the Anti-Terrorism Act, 1997 unambiguously provided that any person who violated any direction or order or any term of bond executed thereunder shall expose himself to punishment of imprisonment that may extend to three years or with fine or with both and, thus, any violation of bond clearly constituted an offence punishable under the said Act and, as such, the present accused committed an offence under the Act and, therefore, was rightly prosecuted and convicted for his willful absence from law

Moreover the record of the case also showed that the prosecution successfully drove home the charge against the accused on the strength of "proof beyond doubt" comprising oral as well as documentary evidence, leaving no space to entertain any hypothesis other than his guilt

Petition for leave to appeal was dismissed and leave was refused.

2022 SCMR 1185 SUPREME-COURT Judicial Precedent

Ss. 11EE, 33 & Fourth Sched.Proscription of personAccused placed in Fourth Schedule to the Anti-Terrorism Act, 1997 by the Provincial GovernmentPlea that only the Federal Government had the prerogative to place the name of a person in such listValidity

Federal Government in exercise of powers vesting in it under section 33 of the Anti-Terrorism Act, 1997 had already delegated its powers to the Provincial Home Secretaries of the each Province as well as Chief Commissioner Islamabad Capital Territory vide notification dated 29th October, 2014; this being so petitioner's placement in the Fourth Schedule by the Provincial Home Secretary was an act well within remit of law

Petition for leave to appeal was dismissed and leave was refused.

2021 YLR 224 Gilgit-Baltistan Chief Court Judicial Precedent

Art. 86Anti-Terrorism Act (XXVII of 1997), S. 11-EEWrit petitionProscription of personScopePetitioners assailed inclusion of their names in the list of Fourth Sched. of Anti-Terrorism Act, 1997

Contention of petitioners was that the Deputy Attorney General had made a categorical statement at the bar that the names of petitioners had been deleted from the list of Fourth Sched. at the time of disposal of an earlier writ petition

Validity

Chief Court observed that when an undertaking was given in the court, deviation therefrom amounted to the gravest kind of contempt of court

Names of petitioners were deleted from the list of impugned notification

Writ petition was disposed of accordingly.

2020 YLR 2232 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 11-EE & Fourth Sched.Constitution of Pakistan, Art. 4Proscription of personRight of individuals to be dealt with in accordance with lawScopePetitioner sought exclusion of his name from the fourth schedule of Anti-Terrorism Act, 1997Validity

Authorities had placed the name of petitioner in the Fourth Sched. of Anti-Terrorism Act, 1997 without any cogent reason and evidence

Report submitted by the SHO concerned had clearly stated that the petitioner was neither involved in any anti-state activities nor was he a memeber of any proscribed organization

Mere involvement in criminal cases was no ground to curtail the liberty of a citizen, which was guaranteed by Art. 4 of the Constitution

Inclusion of the name of petitioner in Fourth Sched. of Anti-Terrorism Act, 1997 for indefinite period was not only against the law but flagrant violation of inalienable rights of citizen to enjoy protection of law or to be treated in accordance with law

Constitutional petition was allowed and the authorities were directed to remove the name of petitioner from the Fourth Sched. of Anti-Terrorism Act, 1997.

2020 PLD 629 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 11-EEProscription of personAdministrative orderScope

Question before High Court was whether, in appeals filed under S.11-EE(3-A) of Anti-Terrorism Act, 1997, the Prosecutor Department had to assist the court or it was a matter wherein the Advocate-General Office was required to render assistance

Held, Anti-Terrorism Act, 1997 was primarily linked with criminal law, repercussions flowing therefrom were penal and right of appeal also laid before the judicial forum

Where the order was passed in administrative capacity against which right of appeal was provided before the High Court, in such like matters, Advocate-General Office represented the State

Order passed under S.11-E(3) of Anti-Terrorism Act, 1997 was administrative in nature, hence, Advocate General Office was required to assist the court.

2020 PLD 378 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 11EE & Fourth Sched.Proscription of personScopeReasonable "information" about the person to be proscribedScope

In order to invoke the provisions of S.11-EE of the Anti-Terrorism Act, 1997, there must be reasonable information in order to prima facie establish that the person to be enlisted in the (Fourth) Schedule was an activist, office-bearer or an associate of a proscribed organization or an organization suspected to be involved in terrorism or sectarianism

Such information should be gathered from any credible source whether domestic or authorized including governmental and regulatory authorities, the law enforcement and intelligence agencies, financial institutions, Banking and non-Banking companies and even international institutions

Nothing had been mentioned in the Act to the effect that the material must be placed in black and white in support of such information

Word 'information' had been used and not 'material' for inserting name of any person in the (Fourth) Schedule.

2020 PLD 378 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 11EE & Fourth Sched.Proscription of personCredible information and sufficient materialScope

Report submitted by the Provincial Government showed that the name of the appellant was included in the (Fourth) Schedule to the Anti-Terrorism Act, 1997 on the source of information received through credible means and Banking institutions; that the appellant was detained for 90-days under S.11(EEEE) of the Act due to his negative activities being initiated by him in his madrissah and fourteen criminal cases had so far been registered against him wherein though he had been acquitted in most of the cases yet it showed his conduct; that joint combing operation was conducted in the religious institution being run by the appellant from where different weapons were recovered out of which, most of the weapons were licensed in different names; that three Bank accounts in the name of the appellant were blocked, whereas an account in the name of some other person was used for foreign funding for the religious institution of the appellant; that appellant had affiliation with proscribed organizations and he used to indulge himself in negative activities against the State

Name of appellant had been inserted in Fourth Schedule to the Act for the fourth time but he had not mended his ways and even during that period, he violated the restrictions imposed against him under S.11(EE) of the Act

Credible information and sufficient material was available against the appellant, which did not permit deleting his name from the (Fourth) Schedule to the Act

Appeal was dismissed.

2017 YLRN 264 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.11-EEProscription of personObject

Intent of the Legislature to introduce provisions of S.11-EE of Anti-Terrorism Act, 1997, was to oversee persons involved in anti-social and subversive activities endangering public safety and security of the State.