QALANDAR ALI KHAN, J.--This writ petition by the petitioner, Syed Ghazanfar Kazmi, is, primarily, directed against placing his name in the list of suspicious persons, his harassment and intimidation/threats to him. In his writ petition, the petitioner claifned to be well educated citizen of Pakistan duly registered with Khyber Pakhtunkhwa Bar Council as an Advocate and active lawyer of the Peshawar Bar Association. The petitioner stated that he belonged to Shia Sect of Islam but was neither a Shia Scholar nor had ever joined Shia Organization, but respondent No,3, Lt. (Col) Imtinan Kazmi, who was his real cousin and was involved in litigation with him, was taking undue advantage of his influence and powerful position and was leaving no stone unturned to tease and harass him. The petitioner alleged that he was illegally confined in his house for a period of 10 days during Muharram-ul-Harram and that when he came to know about the role played by respondent No,3 in his harassm ent etc, he filed W.P No,2883- P/2013; and further that on the basis of statement made before the court by respondents Nos,6 and 7, stating that there was nothing in black and white against him, the writ petition was disposed of on 17.04.2014; allowing, however, the petitioner to re-approach the court if he felt aggrieved of any such acts of the respondents. The petitioner alleged that his harassment and humiliation, even thereafter, continued, therefore, he had to move for deletion of his name from the list of suspected persons as was alleged to have been prepared under section 4 of the Anti-Terrorism Act, 1997, and to restrain the respondents from his illegal and unconstitutional harassme nt, but to no avail; hence the instant writ petition.
2. In their comments, Secretary, Home Department (respondent No,1) and the Inspector General of Police (respondent No,5) refuted the allegations contained in the writ petition of the petitioner, and pointed out that the petitioner was having a legal remedy in the shape of appeal by virtue of Section 11-EE (3A) of the Anti Terrorism Act, 1997; and that name of a serving colonel of Pak Army included as a respondent in the Writ petition, the jurisdiction of this court was expressly barred ' under Article 199(3) of the Constitution of the Islamic Republic of Pakistan, 1973. They claimed that the petitioner was an activist of Militant Organization (Sepah-e-Muhammad Pakistan) and was involved in the abetment of the killing of Aslam Farooqi and that he had cordial relations with Senator Jawad Hadi, Madrassa Arif Hussain Al-Hussaini and further he was also involved in terrorist activities in Gilgit-Baltistan. Therefore, on the basis of report of the Special Branch, Khyber Pakistankhwa, name of the petitioner had been placed on Fourth Schedule of the Anti-Terrorism Act, 1997.
3. Arguments of learned counsel for the petitioner and learned AAG heard, and record perused.
4. The petitioner alleged his harassme nt and intimidation by the other respondents at the behest of respondent No,3, on the ground of his name included in the list of suspicious persons. Respondents Nos,1 and 5, though, refuting the allegation of the petitioner with regard to his harassment at the behest of respondent No,3, yet admitting in their comments that the name of the petitioner had been placed on Fourth Schedule of Anti- Terrorism Act, 1997, as name of a person as proscribed person included in the Fourth Schedule under section 11- EE of the Anti-Terrorism Act, 1997. It would, therefore, be worthwhile to reproduce the relevant provision of Section 11-EE of the Anti-Terrorism Act, 1997, as follows; 11-EE Security for good behavior (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 or 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. - (1A) The grounds shall be communicated to the proscribed person within three days of the passing of the order of prosecution.
(2)
(a)........................................................
Provided.................................................
Provided further.......................................
(b) ........................................................................
(c) Require: .........................................
(i)........................................................................
(ii).......................................................................
(iii) .......................................................................................................................................................................................................
(iv) ................................................
(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 incharge of the Police Station within whose jurisdiction such place is situated, namely:
(i) schools, colleges and other institutions where persons 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, tea shops 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 shall exercise the powers 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:"
5. As would be seen, there are three striking features of the above stated legal provision; first being that the Federal Government may, by order published in the Official Gazette, list a person as a proscribed person in the Fourth Schedule if there were reasonable grounds to believe that such person was (a) concerned in terrorism;
(b) an activist, office bearer or an associates of an organization kept under observation under section 11-D or proscribed under section 11-B: 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. The second such feature was mandatory provision of communication of grounds to the proscribed person within three days of the passing of the order of proscription; and, last but not the least, provision that no order under clause (d) or
(e) above shall be made operative for a period of more than three years.
6. In order to meet the above mandatory requirements of law, the respondents annexed only a special report of the Special Branch, KPK, dated 26.09.2012, with their comments; without substantiating the special report with supporting proof/evidence like involvement of the petitioner in terrorism or is associate of or is taking part in the activities of an organization kept under observation under section 11-D or proscribed under section 11-B 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. The respondents also failed to furnish even such an unsubstantiated report of the recent time; and, instead, besides relying on the report almost 4-1/2 years old, the learned AAG also, today, submitted a copy of old notification dated 13.11.2012 by the Government of Khybar Pakhtunkhwa, Home and Tribal Affairs Department, showing name of the petitioner included in the list as well. It may be pointed out that not only the said notification has been declared secret/confidential, let alone its publication in the official gazette; but neither grounds specified in the aforesaid provision of law were mentioned nor there was anything in the notification suggesting that such grounds were communicated to the petitioner within three days of the passing of the order of proscription. Above all, the notification was issued on 13.11.2012, therefore, the same no longer remained operative after expiry of three years in the year 2015.
7. In the absence of evidence/proof, substantiating allegations of the respondents against the petitioner, together with failure on the part of the respondents to prove on record any fresh order/notification listing the petitioner as a proscribed person in the Fourth Schedule, after notification dated 13.11.2012, which became inoperative in the year 2015, neither the petitioner can, in any way, be proceeded against under section 11-EE of the Anti Terrorism Act, 1997; nor, as such, can be unduly harassed or intimidated or subjected to other coercive methods in order to unlawfully curtail his constitutionally guaranteed freedom and liberty. [Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others (PLD 2005 Lah. 370), Abdul Rauf v. Chief Commissioner, Islamabad and 5 others (PLD 2006 Lahore 111), Muhammad Yousaf Farooqi v.
Government of Punjab (2012 PCr.LJ 905) and Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore and 6 others (2013 PCr.LJ 312)].
8. It may be added here that earlier, too, the petitioner had approached this court against the act of placing him in the list of suspicious persons and restraining and detaining him, and also for deletion of his name from the list/record of suspicious persons; but when SSP Investigation appeared in the court and submitted that he had no concern with the case unless any case was sent to his office for investigation and the then SHO Police Station, Chamkani, also submitted that during his posting as SHO Police Station, Chamkani, he never deputed any police official outside the house of the petitioner and further disclosing the fact that there was nothing in black and white against the petitioner but his name was in the list of suspected persons in the year 2012 as required under section 4 of the Anti Terrorism Act, 1997, the petition was disposed of, however, allowing the petitioner to approach the court if he felt grievance from any such acts of the respondents.
9. Consequently, the writ petition is accepted; and it is declared/ held that the act of harassment and pressurizing the petitioner on the pretext of his name included in the list of suspected persons and restraining and detaining him was illegal, unlawful and unconstitutional, hence not tenable; with consequential direction to the respondents to act in accordance with the letter and spirit of law in general and Section 11-EE of the Anti Terrorism Act, 1997, in particular, and provide protection to the petitioner against his undue harassment instead of becoming a party to such an unsavory practice of his illegal harassment on the basis of any extraneous consideration not provided for by the law.