Naqeebullah Versus The Government of Balochistan, through Secretary Home and Tribal Affairs, Quetta

Order

Shaukat Ali Rakhshani, J .--- The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan,1973 ( Constitution ), carries the following relief;

I. That, the respondents may kindly be directed to produce before this Hon ble Court the information on the basis of which the petitioner has been proscribed on April 26th of 2021.

II. That, the respondents may kindly be inquired of that in absence of anything incriminating against the petitioner why did not delist the petitioner even after a considerable time period.

III. That, the respondent may kindly be directed to delist the petitioner from 4th schedule of the Anti-Terrorist Act, 1997.

IV. That, a heavy and exemplary cost may kindly be inflicted upon the respondents for their irresponsible approach and attitude towards their duty and for violation of fundamental rights of the petitioner.

V. Any other relief this Hon ble Court deem fit and appropriate in the interest of justice, equity and good conscience of justice .

2. Facts germane for disposal of the instant petition are that the petitioner is statedly Hafez-e-Quran and runs a general store, who was arrested by the law enforcement agency from his shop in the year 2017. It is case of the petitioner that he was kept in custody for almost nineteen (19) months without any trial and thereafter released on personal surety bond of his elder brother, but later he was informed by the police that he has been proscribed and enlisted in 4th schedule of the Anti-Terrorism Act, 1997 ( Act of 1997 ) vide Notification No. SO (Jud:II)8(I)2021/ATA/1464 dated 26.04.2021, whereafter the petitioner several times approached the respondents for exclusion of his name thereof, however, on each occasion the petitioner was assured that he would be de-listed, but, neither the petitioner has been de-listed from 4th schedule of the Act of 1997 nor any kind of information has been shared with him, hence this petition.

In response to the notices issued by this Court, parawise comments were filed by respondent No.2, contesting the petition on factual and legal premises.

3. Heard. Record perused with the able assistance of learned A.A.G. as well as learned counsel for the petitioner. The petitioner has questioned the validity of notification dated 26.04.2021, wherein he was proscribed and enlisted in the 4 th schedule of the Act of 1997 on the basis that the Government has failed to bring anything incriminating against him. On the other hand, the respondents claims that there was sufficient ground and incriminating material, which led the Government to enlist the petitioner in the 4th schedule of Act of 1997.

Record reflects that vide notification dated 26.04.2021, the petitioner was enlisted in the 4th schedule of Act of 1997 on the basis of recommendation made by District Intelligence and Coordination Committee, Quetta ( DICC ) dated 11.02.2021. Subsequently, the case of the petitioner was placed along with different other proscribed persons in the 9th meeting of Proscription Review Committee ( PRC ) held on 03.10.2023, wherein it was decided that the name of the petitioner would be retained in the list of 4th schedule of the Act of 1997.

4. Undeniably, it is a cardinal principle of administration of justice that a person cannot be condemn unheard and before indicting him or ren dering any adverse decision, sufficient opportunity must be afforded in order to offer explanation thereof. Article 10A of the Constitution clearly manifests that for determination of civil rights and obligations or in any criminal charge against him a person shall be entitled for a fair trial and due process. The criminal administration of justice demands that the courts of the country must always remember that while dealing with the matters of life, liberty, body, reputation or property of all persons must be dealt in accordance with law and that every persons appearing before them is entitled to a fair trial and due process of the determination of his civil rights and obligations for any criminal charge against him. The apex court, in the case of Bashir Ahmed v. Additional District Judge, Hafizabad (PLD 2024 SC 67), while referring to the case of Maxwell v. Department of Trade (1974 QB 523) , highlighted that Doing what is right may still result in unfairness, if it is done in the wrong way , which speaks volumes.

Admittedly, no culprit shall go scot-free, but at the same time no innocent shall be harmed in any manner.

5. In the instnat case, the petitioner has been placed and proscribed in the 4th schedule in terms of section 11-EE of Act of 1977, which for ease of reference is reproduced herein below;

[11EE. Proscription of Person ](1) The Federal Government may, by order published in the official Gazette, list a person as a proscribed person in the fourth Schedule on an ex-parte basis, if there are reasonable grounds to believe that such person is

(a) concerned in terrorism;

(b) an activist, office bearer on an associate of an organization kept under observation under section 11D or proscribed under section 11B; and

(c) 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 or acting on behalf of, or at the direction of, any person or organization proscribed under this Act; Explanation.-- The opinion concerning reasonable grounds to believe may be formed on the basis of information received from any credible source, whether domestic of foreign including governmental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and non-banking companies, and international institutions.]

(1A) The grounds shall be communicated to the proscribed person within three days of the passing of the order of proscription.]

(2) Where a person s name is listed in the Fourth Schedule, the Federal [ .], 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 this good behavior and not to involve 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:

Provided that where he fails to execute the bond or cannot produce a surety or sureties to the satisfaction of the District Police Officer order him to be detained and produced within twenty-four hours before a court which shall order him to be detained in prison until he executes the bond or until a satisfactory surety or sureties if required, are available or, failing that the term of the order under clause (a) expires

Provided further that where he is a minor, the bond executed by a surety or sureties only may be accepted;

(b) require any such person to seek prior permission from the officer in charge of the Police Station of the concerned area before moving from his permanent place of residence for any period of time and to keep him informed about the place he would be visiting and the persons, he would be meeting during the stay;

(c) require:-

(i) that his movements to be restricted to any place or area specified in the order;

(ii) him to report himself at such times and places and in such mode as maybe specified in the order;

(iii) him to comply with both the direction;

(iv) that he shall not reside within areas specified in the order;

(v) no bank or financial institution or any other entity providing financial supports shall provide any loan facility or financial support to proscribed person or issue credit cards to proscribed person; and

(vi) the arms licenses, if already issued, shall be deemed to have been cancelled and the arms shall be deposited forthwith in the nearest Police Station, falling which such arms shall be confiscated and holder of such arms shall be liable for the punishment provided under the Pakistan Arms Ordinance, 1965 (W.P.Ord.XX of 1965). No fresh license shall be issued to such persons for any kind of weapons.

(d) direct that he shall not visit or go within surroundings specified in the order including any of the under mentioned places, without the written permission of the officer in charge of the Police Station within whose jurisdiction such place is situated, namely:-

(i) schools, colleges and other institutions where person under twenty-one years of age or women are given education or other training or are housed permanently or temporarily;

(ii) theatres, cinemas, fairs, amusement parks, hotels, clubs, restaurants, teashops and other place of public entertainment or resort;

(iii) airports, railway stations, bus stands, telephone exchanges, television stations, radio stations and other such places;

(iv) public or private parks and gardens and public or private playing fields; and

(v) the scene of any public meeting or procession of any assemblage of the public whether in an enclosed place or otherwise in connection with any public event festival or other celebrations;

(e) check and probe the assets of such persons or their immediate family members i.e. parents, wives and children through police or any other Government agency, which shell exercise the power as are available to it under the relevant law for the purposes of the investigation, to ascertain whether assets and sources of income are legitimate and are being spent on lawful objectives:

Provided that no order under clause (d) or (e) above shall be made operative for a period of more than three years; and

(f) monitor and keep surveillance over the activities of such person through police or any other Government agency or any person or authority designated for the purpose.

(3) Where any person is aggrieved by the order of the Federal Government made under subsection (1), he may, within thirty days of such order, file a review application, in writing, before the Federal Government stating the grounds on which it is made and the Government shall, after hearing the applicant, decide the matter on reasonable grounds within ninety days.]

(3A) A person whose review application has been refused under subsection (3) may file and appeal to the High Court within thirty days of the refusal of the review application.]

(4) Any person who violates and direction or order of the Federal [ ]or any terms of bond referred to in subsection (2), shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.]

6. Bare reading of section 11-EE of the Act of 1997 provides a detailed method and procedure for placing a person in the proscribed list of 4th schedule of the Act of 1997 on an ex-parte basis, if there are reasonable grounds to believe that the said person is an activists or office bearer of the proscribed organization or concerned in terrorism with any other terrorist organization. But, it also envisages that the grounds of placing a person in the list of 4th schedule shall be communicated to the proscribed person within 3 days of the passing of the proscription and he may also be asked to furnish one or more sureties to the satisfaction of the District Police Officer, where the said person ordinarily resides or carries business. Moreso, the movement of the proscribed persons can also be restricted and he may be directed to report time to time as specified in the order. Clause 3 of section 11-EE of the Act of 1997 provides a remedy to a proscribed person by filling a review application in writing before the Federal Government, which may be decided on reasonable ground within 90 days. Let it be clarified here that the word Federal Government used in the clause ibid is not restricted only to the Federal Government, but also refers to the Provincial Government, in case such powers are conferred by the Federal Government to the Provincial Government, which we believe has been delegated in terms of section 33 of the Act of 1997. That apart, clause 3A of section 11-EE of the Act of 1997 further provides a remedy by way of filing an appeal to the High Court against the refusal of the review application filed under section 11-EE (3) of the Act of 1997.

7. Being within the trichotomy of powers, the role of the legislature is to make laws, the task of interpretation of statutes has been entrusted to the judiciary, whereas the executive has to implement and enforce the law in the country. The executive powers entrusted to the executive requires to be checked, when it affects the mobility of a citizen, therefore, it must be ensured that it is not exercised arbitrarily. A citizen is obliged to render obedience to the State and the applicable laws as contemplated under Article 5 of the Constitution, but similarly it also confers responsibility upon the state to keep watch on the suspected persons for the purpose of monitoring their conduct and if no adversial facts are brought, a person may not be hunted by his or her previous conduct.

8. In the instnat case, on the recommendation of the DICC dated 11.02.2021, the petitioner has been placed in the 4th schedule of the Act of 1997 vide notification dated 26.04.2021. After perusal of the minutes of said meeting of the DICC, we have found that while recommending the petitioner for placing his name in the 4th schedule no incriminating material was referred and similarly, while issuing notification dated 26.04.2021 nothing has been found mentioned that on the basis of what incriminating evidence the name of petitioner was placed in the list of 4th schedule of the Act of 1997. Likewise, in the minutes of the meeting of the PRC dated 03.10.2023, while maintaining the name of the petitioner in the 4th schedule list of the Act of 1997 for an extended period, no plausible incriminating material was referred and discussed, except referring to a report of Military Intelligence, whereby doubts regarding the petitioner s activities were shown, but at the same time it was also mentioned that representative of the said agency appraised the forum that improvement has been noticed in his conduct and that he has been reporting in the police station regularly, For ease of reference, the relevant excerpt thereof is facsimile hereunder;

S.No.

Name/Father Name/Address/CNIC No.

Report/Affidavit/Application Judgment/Order of Hon ble Court/Discussion during PRC

Decision

1.

1. Naqeeb Ullah son of Abdul Wahid late) resident of Quetta. CNIC No. 54401- 0981510-7 Sect: Deobandi Add in 4th Schedule: 26.04.2021 Category; A Organization: Daish

As per report of Mi, still doubts prevail about suspicious activities of said 4th Scheduler. The representative of said agency apprised the forum although improvement has been noticed in his conduct but his name needs to be continued in the list of Fourth Schedule. The member of Police Department reported that he has been attending Police Station regularly. The Deputy Commissioner Quetta told the forum that on the recommendation of MI said person was proscribed and endorsed the stance of MI for retention of his name in said list. During meeting, he also appeared in person before the forum wherein worthy convener interrogated the individual cordially about his occupation and family history and the responded positively. Consequently, the forum decided to retain his name in the said list thereby his name for exclusion from list of IV-Schedule was turned down.

After detailed deliberation on the matter, the forum unanimously decided that his name be retained in the list of Fourth Schedule.

9. Furthermore it is worthy to note that the report dated 29.09.2023 was submitted by the monitoring officer ASI Abdul Wahab to the PRC, wherein it has categorically been mentioned that nothing adverse has been reported against the petitioner, during his surveillance and that there is no need to retain him further in the list of 4th schedule.

10. Upshot of the above discussion is that, there are no sufficient grounds to retain the name of the petitioner in the proscribed list of 4th schedule of the Act of 1997, thus, the retention of the name of the petitioner for further extended period in the proscribed list of 4th schedule is mis-exercise of authority, which cannot be allowed to remain in field.

11. For what has been discussed hereinabove, the instant constitutional petition is converted into appeal as contemplated under section 11-EE (3A) of the Act of 1997.

12. Corollary, the appeal is allowed; consequent thereto, notification dated 26.04.2021 and decision of PRC dated 03.10.2023 to the extent of appellant Naqeebullah are declared null and void, having no legal effect and the respondents are directed to exclude the name of the petitioner from the proscribed list of 4th schedule of the Act of 1997 forthwith.

UN/7/Bal. Appeal allowed.