ABDUL HAMEED BALOCH, J.---The petitioner filed instant constitutional petition with the prayer: "In view of above made humble submissions, it is respectfully prayed that the name of petitioner be ordered to be excluded, from the impugned notification dated 28-02-2019. This will meet the ends of justice."
2. The petitioner was arrested on the basis of different FIRs lodged with different Police Stations of Quetta, in which the petitioner was granted bail. Meanwhile the respondent No. 1 issued Notification No. SO (Judl:)8(1)/2015/ ATA dated 13th May, 2015, whereby the name of the petitioner was placed in 4th Schedule of Anti Terrorism Act, 1997 (ATA, 1997). The petitioner filed an application for exclusion of his name from 4th Schedule. The respondent No. 2 sought report from respondent No. 3 and in compliance thereof S.H.O. Police Station Pashtoonabad submitted report. The relevant Para is reproduced hereunder for ready reference: {{URDU TEXT}}
3. The respondent No. 1 again on 28th February, 2019 vide Notification No. SO (Juld:)8(1)/2019/ATA/372-82 re- notify the names of different persons including the name of petitioner. S.H.O. Police Station Abad Khaliq Shaheed/ respondent No. 4 submitted report to this Court on 17th December, 2019, reiterating the contents of the report referred above.
4. Heard the learned counsel for the petitioner and Additional Prosecution General at length and carefully examined the record. It appears that petitioner was acquitted from the criminal cases registered against him by competent court of law. The name of the petitioner was put in 4th Schedule of ATA on 13th May, 2015 by Notification No. SO (Judl.) 8(1)2015/ATA 1316-40. It would be appropriate to reproduce Section 11 EE of Anti Terrorism Act, 1997: "11-EE. 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;
(aa) listed under the United Nations (Security Council) Act, 1948 (XIV of 1948);
(h) an activist, office bearer on an associates of an organization kept under observation under section 11D or proscribed under section 11B;
(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 or foreign including governmental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and on-banking companies and international institutions.
5. The respondent No. 1 placed the name of the petitioner in 4th Schedule of ATA without any cogent reason and evidence. The respondent No. 4 submitted report wherein it was clearly stated that the petitioner is neither involved in any anti-State activities nor member of any proscribed organization. Mere naming in criminal cases is no ground to curtail the liberty of a citizen which is guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, which is reproduced for ready reference: "Article 4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular.--
(a) no action detrimental to the life, liberty, body, reputation or properly of any person shall be taken except in accordance with law.
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
Article 4 of the Constitution is guaranteed the right of liberty, any restriction or invades such guaranteed by the law is not permissible. Any action by the authority contrary to guaranteed provided under Article 4 of the Constitution is illegal, void an-initio. The State functionary has not been allowed to deprive a citizen of his right without due process of law. The Government could not be permitted to take any fundamental right of a citizen on their wish. Reliance is placed on the case of Muhammad jameel Das (W. Copal Das) v. The Pakistan through Secretary Ministry of Communication Government of Pakistan 1999 CLC 541 (Lahore). It was held: "----. The right of a Pakistani citizen to be dealt with in accordance with law in respect of his life, liberty, body, reputation or property is guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973.
This recognises the supremacy of law for providing the aforesaid guarantee to every citizen till he is disqualified in accordance with law. Since it is a Constitutional guarantee, therefore; any law, which restricts or invades such right should be strictly construed. The mere fact that a citizen is out of the country would' not deprive him of his Fundamental Rights guaranteed to him under the supreme law of the land. Any action, contrary to the guarantee provided under Article (supra) can be challenged for appropriate relief. Likewise Article 24 of the Constitution ensures that no person shall be compulsorily deprived of his property save in accordance with law.
Although exceptions are provided under the Article to the aforesaid right, but those are to be construed strictly wherever an action is intended to deprive a citizen of his property. The protection of proprietary rights in a property is a fundamental right and cannot be allowed to be taken away easily at whims of the Government functionaries. Likewise every citizen of Pakistan has a right to be treated equally and to have equal protection of law under Article 25 of the Constitution."
6. The inclusion of the name of petitioner in the 4th Schedule of ATA for indefinite period is not only against the law but flagrant violation of inalienable rights of citizen to enjoy protection of law or to be treated in accordance with law as enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan. Reliance is placed on the case of Muhammad Yousaf Farooqi v. Government of Punjab 2012 PCr.L J 905, wherein it was held: "6. A person having links with proscribed organization being activist thereof or falling into such activities, which may endanger the whole fabric of the society or threaten public peace, tranquility or cause fanning out of religious and sectarian hatred etc., must be placed under Fourth Schedule as the said provision of law has been brought on the Statute Book for the said purpose, but in the instant case, no such reason has been offered or no such evidence has been hinted at either by the Authority or by the learned Assistant Advocate-General Punjab, which could justify the action of the respondent for placing the name of the petitioner in the Fourth Schedule as Re-entry on 5-5-2011 immediately on deletion of his name from the said schedule, which, for the first time, had been inserted through order dated 27-6-2006. It appears to be an overdoing on the part of the respondent, who instead of having learnt a lesson from the mistake committed by him earlier repeated the same at the cost of liberty of a citizen (the petitioner) guaranteed under the Constitution of Islamic Republic of Pakistan. We do not find any good reason to believe that the impugned order or the repeated order dated 5-5- 2011, had been passed by the respondent on some sound reasoning and believable evidence, which ought to have been hinted at, if there was any.
The mechanical exercise undertaken by the respondent does no good to the society or to the law and order situation or maintenance of public order or religious/sectarian harmony. It rather appears to be an eyewash, which certainly militates against the requirement of law. "
In view of above, we allowed the instant petition and the impugned Notification dated 28th February, 2019 is declared null and void to the extent of petitioner with direction to remove the name of the petitioner from the 4th Schedule of ATA forthwith.