MEHRAM ALI and others vs FEDERATION OF PAKISTAN and others

ORDER

' For the reasons to be recorded later on, we dispose of the above cases as under:--

(i) Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon;

(ii) section 10 of the Anti-Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon a premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search;

(iii) section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid;

(iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of indepedence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of appellate tribunal and to use the words "High Court" in place of "Appellate Tribunal";

(v) section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate.

(vi) that the offences mentioned in the Schedule should have nexus with thelF objects mentioned in sections 6, 7 and 8 of the Act;

(vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government;

(viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary.

2. That the above declaration will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to as above.