' ABDUS SATTAR ASGHAR, J.---Khawaja Mureed Hussain, the petitioner, has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the Notification No,9-166-H-SPL- 1/2005 dated 13-12-2005 whereby his name has been incorporated in the list under 4th Schedule under section 11-EE of Anti-Terrorism Act, 1997 (to be called hereinafter as Act) by Home Department Government of Punjab.
2. Secretary to Government of the Punjab Home Department in his parawise comments contended that having sufficient evidence provided by Law Enforcement and Intelligence Agencies against the petitioner an activist of defunct organization Tehrik-e-Jafria Pakistan/Sipah-e-Sahaba Pakistan on the basis of his activities prejudicial to public safety, maintenance of public order and sectarian harmony his name was duly incorporated in 4th Schedule.
3. It is argued by learned counsel for the petitioner that respondents have not been able to substantiate the allegations against the petitioner through any speck of material and that despite lapse of three years since the issuance of notification dated 13-12-2005 petitioner's name is not deleted till date, therefore, impugned notification is mala fide, of no legal effect and untenable in law.
4. On the other hand learned A.A.-G. Has argued that section _ 11-EE(3) of the Anti-Terrorism Act 1997 furnishes adequate remedy of appeal to an aggrieved person to be filed within thirty days of the notification; that petitioner did not avail adequate remedy, therefore, cannot invoke the constitutional jurisdiction of this Court.
5. We have given patient hearing to the learned counsel for the petitioner, learned A.A.-G. And also gone through the record.
6. At the outset it will be expedient for the ready reference to reproduce hereunder section 11-EE of the Anti-Terrorism Act 1997 which reads below:-- "11-EE. Security for good behaviour.---(1) Whenever the Federal or Provincial Government on an information received from any source that any person is an activist, office-bearer or an associate of an organization kept under observation under section I ID or proscribed under section 11E, or 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, such Government may notify the name of such person or persons in a list entered in the Fourth Schedule.
(2) Where a person's name is listed in the Fourth Schedule, the Federal or Provincial Government, 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 [along with a bank guarantee or cash not less than three hundred thousand rupees to be deposited in Court] to the satisfaction of the District Police Officer in the territorial limits of the said person ordinarily resides, or carries on business, for his good behaviour and not to involve in 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:"
7. Bare reading of above cited provision of the Act makes- it crystal clear that availability of concrete material and cogent reason to prima facie establish that the person is an activist, office- bearer or an associate of a proscribed organization, or an organization suspected to be involved in terrorism or sectarianism is sine qua non to incorporate the name of such person in the list to be prepared under 4th Schedule of the Act. It is pertinent to mention that respondents in their parawise comments have not been able to bring any speck of material to substantiate their allegations against the petitioner. In the absence of any tangible material justifying the inclusion of petitioner's name in the 4th Schedule he cannot be legally required to execute a bond with sureties for a period exceeding three years as stipulated in section 11EE(2)(a) of the Act. Therefore, persistent inclusion of the petitioners name in 44th Schedule for indefinite period beyond three years is prima facie violative to the provisions of Article 10(4) of the Constitution of Islamic Republic of Pakistan which furnishes sufficient indiscriminate protection of law to a citizen.
8. The expression "preventive detention" although not defined in the Constitution, however, is used in Sub Article (4) of Article 10 of the Constitution of Islamic Republic of Pakistan 1973 with an object to combat anti-social and subversive elements from endangering the public safety and security of the State as well as to ensure protection to the personal liberty of a citizen as enshrined in the said Article. Reliance is made upon:- Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (PLD 1966 Supreme Court 286).
9. In the light of the above legal and factual position continuous retention of petitioner's name in the list prepared under the 4th Schedule of the -Act through the impugned notification after the expiry of three years is untenable in law.
10. For the foregoing discussion and reasons this writ petition is allowed and respondents are directed to delete the petitioner's name from the list under 4th Schedule of the Act. Order accordingly.