SYED MUHAMMAD ATTIQUE SHAH, J.---Through this common judgment, this Court shall decide the following eight writ petitions, as identical question of law pertaining to section llEE of Anti-T errorism Act, 1997 is involved in all these petitions.
1. W.P No,1050-A/2016 `Nayyar Abbas Jaf fari v . Govt. of KPK and others'.
2. W.P. No,748-A/2017 'Muhammad Nisar v . Govt. of Pakistan and others'.
3. W.P No,830-A/2017 'Syed Manzar Ali Shah v . Govt. of KPK and others.'
4. W.P. No,919-A/2015 ' Maulana Waqar-ul-Mulk v. Secretary Home and Tribal Affairs Department, KPK , Peshawar and others.'
5. W.P No,1095-A/2016 'Muhammad Bilal v . Federal Government of Pakistan and others'
6. W.P.No,1262-A/2016 'Muhammad Iqbal Khan v . Government of Pakistan and others.'
7. W.P. No,310-A/2017 'Muhammad Siddique v . Federation of Pakistan and others.'
2. In essence, the petitioners in all the aforementioned writ petitions seek withdrawal/deletion of their names from Schedule-IV of Anti-T errorism Act, 1997.
3. The respondents contested the writ petitions by filing their parawise comments and also raised objection regarding maintainability of writ petitions in view of availability of alternate remedy of review under section 11EE(3) of Anti-T errorism Act, 1997 and prayed for dismissal of writ petitions.
4. Arguments of the learned counsel for the petitioners heard and record perused.
5. First of all this Court would like to meet the objection raised by the respondents regarding maintainability of writ petitions in view of availability of remedy of review provided by section 11EE(3), it is observed that the respondents have already expressed their views in the parawise comments submitted by them, wherein, they justified the inclusion of the names of the petitioners in the list of Fourth Schedule and as mentioned above, therefore, their objection regarding maintainability of writ petitions is not sustainable in the circumstances, especially , when the period of three years has already been elapsed.
6. Now coming to the merits of the case, perusal of record reveals that the names of petitioners were listed in Fourth Schedule of Anti-T errorism Act, 1997 on the grounds that they were associated with the sectarian activities.
Before dilating upon the legality of the inclusion of the names of the petitioners in the said list, it would be appropriate to refer hereunder the provisions of section 1 1EE(2)(a) of the Act ibid for convenience: 11 EE. Security for good Behaviour .
[(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 asso ciate of an organization kept under observation under section 11D or proscribed under section 1 1B; 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, wheth er domestic or foreign including governm ental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and on 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 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 to the satisfac tion of the District Police Officer in the territorial limits of which the said person ordinarily resides, or carries on busin ess, for his good behaviour and not involve in any act of terrorism or in any manner advance the objectives of the organization referred to subsection (1) for such period not exceeding three years and in such amount as may he specified."
(Emphasis provided)
6(sic.) While going through the above quoted provisions, it becomes clear that the authority i,e, Federal Government must fulfills the pre-requisites, as provided in subsection (1)(a), (b) and (e) of section 11EE, before listing the name of any person in the Fourth Schedule of the Anti-T errorism Act, 1997. Moreover , the said inclusion of the name could not exceed beyond period of three years, as envisages in subsection (2) (a) of section 11 EE of the Act ibid. Perusal of the record of present petitions would show that most of the names of the petitioners were included in the said list in the year, 2014 and they all executed bond of good behavior , as required under the law.
The statutory period of three years has already been expired, therefore, the names of the petitioners could not be allowed to remain in the said list for indefinite period, as the same is against the provisions of law. Moreover , the petitioners have the right to seek protection of law and to be treated in accordance with law, within the contemplation of Article. 4 of the Constitution of Islamic Republic of Pakistan, 1973. This Court had earlier dealt with the matter in case of Ghazanfar Kazmi's case (PLD 2017 Peshawar 105), wherein, it has been held that: "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; (h) 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 11D or proscribed under section 11B 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 Khyber Pakhtunkhwa, Home and Tribal Affairs Department, showing name of the petition er included in the list as well. It may be pointed out that not only the said notification has been declared secret/con fidential, 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. Govern ment 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-T errorism 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-T errorism 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 ."
8. Therefore, keeping in view the peculiar facts and circumstances of the case and discussion made thereupon, all the writ petitions are accepted as prayed for and respondents are directed to delete the names of the petitioners from the Fourth Schedule of the Anti-T errorism Act, 1997 forth with and defreeze their bank accounts and salaries and pension etc.