MOHAMMED KARIM KHAN AGHA, J.---The petitioner has challenged three separate preventive detention orders which have been issued by. the Government of Sindh for a period of three months each one after the other under various sections of law and in effect conte nded that such orders should be struck down as being illegal and issued without lawful authority on account of amongst other things mala fides and the fact that the Government of Sindh failed to satisfy itself of the need to issue these orders on an objective assessm ent on the material which was placed before it for consideration and that the petitioner was not an "enemy alien" within the purview of Article 10(9) of the Constitution.
2. The brief facts of the case are that petitioner Abdul Hameed Bugti son of Ali Murad Bugti was tried by learned Judge, Anti-T errorism Court No.II Karachi in Special Cases No. 37 of 2005 arising out of Crime No.145/2005 under sections 302/324/427/109/34, P.P.C. 3/4 Explosive Substances Act, 1908 read with section 7 Anti-T errorism Act, 1997 (ATA) registered at Police Station Artillery Maidan Karachi. After trial vide judgment dated 10.06.2014 the appellant Abdul Hameed Bugti son of Ali Murad Bugti was convicted and sentenced as under:- a) For causing death to four persons Sabz Ali, Iftikhar Ahmed, Jawed Iqbal and Noor Rehman, by bomb blast he was sentenced to death. b) For causing injuries to 20 persons he is sentenced to Rigorous Imprisonment for 10 (Ten) years and payment of a fine of Rs.50,000/- (Fifty Thousand) to each injured. c) For causing bomb blast punishable under section 3 of the Explosive Substances Act, 1908 to R.I for life and to forfeit his property to the Government under section 5-A of the Explosive Substances Act, 1908. d) For causing damage to the buildings of Muslim Commercial Bank and PIDC House under section 7(d) of Anti- Terrorism Act, 1997 to R.I. for 14 years.
All the sentences were to run concurrently . The sentence of death awarded to the accused was subject to the confirmation by the Hon'ble High Court of Sindh, Karachi.
3. The offenses for which the petitioner was convicted essentially revolved around a car bomb explosion outside the Muslim Commercial Bank, PIDC House, Karachi which was an act of terrorism which resulted in the death of 4 people and serious injuries to many 'others which as mentioned above lead to the petitioner being sentenced to death.
4. Being aggrieved and dissatisfied by the judgment passed by learned Judge, Anti-T errorism Court No.II, Karachi the petitioner appealed the same before this court.
5. This Court vide Judgment dated 02.04.2020 allowed the appeal of the petitioner and set aside the impugned judgment and ordered his acquittal/release after he had served 14 years without remission.
6. Upon announcement of the Judgme nt referred to above the Government of Sindh immediately issued a preventive detention order hereinafter referred as (PDO's) under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 dated 02.04.2020 for a period of 3 months and on its expiry issued a second preventive detention order under section 11-EEE of the Anti Terrorism Act, 1997 (ATA) dated 01.07.2020 for a further period of 3 months and thereafter issued another preventive detention order under section 11EEE of the ATA read with Article 10 of the Constitution dated 28.09.2020 for yet another period of 3 months making a total of 9 continuous months of preventive detention.
7. Learned counsel for the petitioner has contended that all the preventive detention orders as (PDO's) were based on mala fide and they were issued for the sole purpose of keeping the petitioner behind bars after his acquittal by this court despite already having served 14 years behind bars without remission and in order to circumvent the acquittal judgment of this court; that with regard to the first PDO this was passed on 10.04.2020 immediately after his acquittal by this court for a period of 30 days and based as per the language of the order itself on material gathered by the police in a letter dated 10.04.2020 and from no other source e.g. intelligence agency and was under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (MPO) which stated in effect that the presence of the petitioner at any public place is likely to pose grave threat to the public safety and breach of the peace and tranquility and that the material gathered by the police was not sufficient to satisfy the Government of Sindh on an objective assessment of the material that this would be the case or of having any reasonable grounds to form such an opinion when it issued its first PDO on the same day as receiving this information. That the mala fide of the Government of Sindh was further proved by the fact that as they feared that a further 'detention order under the MPO might be struck down by this court a few days before its expiry the petitioner was placed on the 4th Schedule of the ATA under section 11 (EE) ATA by the Government of Sindh. Once again this was done on the recommendation of the police and not any intelligence agency on the basis that he was affiliated with a terrorist organization and involved in terrorist acts despite there being no material to show that his addition on the IV Schedule of the ATA on these grounds was justified especially as he had been in jail for the last 14 years.
Therefore prior to the expiry of his first PDO in order to keep him continuously in jail the Government of Sindh issued a Second PDO on 08.07.2020 this time under section llEEE of the ATA as opposed to the MPO for a further three months period on the basis of mate rial again provided by the police and not any intelligence agency or other body that he will be able to move around /establish/re-establish networks for the purpose of furthering any terrorist activity being affiliated in the past with such organizations as soon as he was released for which once again the Government of Sindh was satisfied that there existed apprehension of the above for which there was no legally justified material which could have satisfied the Government of Sindh about this based on an objective assessment of the material placed before it.; that even otherwise the wording of section UBE ATA only gave such powers to the Federal Government and not the Provincial Government and as such the second PDO was unlawful and without legal effect especially as the Federal Government had no legal power to delegate such power to a Provincial Government; that once again the mala fide of the Government of Sindh was shown by it issuing the third PDO on 06.10.2020 on the day on which the petiti oner's second PDO was due to expire so that the petitioner could be kept continuously in jail. The third PDO was issued under section 11EEE ATA read with Articles 10(5) and 10(9) of the Constitution and according to learned counsel for the petitioner is due to expire on 05.01.2020. Learned counsel for the petitioner submitted that he had challenged his detention under the first PDO and also under the second PDO under Article 10(4) of the Constitution but his representation was not successful under the first PDO and he had not received any decision regarding his representation under the second PDO. In particular he has stressed that under both the MPO and section 11EEE. of the ATA under which the Government of Sindh issued the successive PDO's there was not enough material which could possibly have satisfied the Government of Sindh based on an objective assessment of the material before it in issuing the three PDO's all of which have been issued on account of mala fide by the Government of Sindh and accordingly the three PDO's should be struck down as being without lawful authority . He contended that in another case he had been shown the material against the petitioner Which the Government of Sindh had used to justify the petitioners detention and in his view this material showed that the petitioner had no contact with the BLA and that he was not even a proscribed person under the. IV Schedule of the ATA in 06.07.2007 when he was arrested in the case which lead to his acquitta l after 14 years and yet almost immediately after his acquittal he was placed on the IV schedule of the ATA under section 11EE ATA as a mala fide pretext to enable him to be detailed for a further period under section 11EEE ATA within one day of his placement under section 11EE ATA despite thee being no new material justifying such placement within one day coming to the attention of the Government of Sindh. According to learned counsel the timing of the finding of the material which was used against the petitioner to detain him which came to light only after his acquittal it was evident that this material was false and fabricated for the sole purpose of keeping him in custody . With regard to the contention that he was an "enemy alien" under Article 10 (9) of the Constitution and as such the safe guards provided in Article 10
(4) would not apply to him he submitted that the petitioner was not an "enemy alien" and that this term might only apply to him if Pakistan was in a declared State of War (as opposed to the so called War on terror) against a Country of which he was a national and since in this case there was no declared State of War and the petitioner was a Pakistani national this term "enemy alien" as used in Article 9 of the Constitution did not apply to' him. In the alternative he submitted that if the petitioner was released subject to the restrictions imposed under section 11EE the petitioner under instructions had agreed to provide a surety bond, report to a PS at a given date and time and allow him to be monitored by any effective monitoring device, for example, mobile phone and other restrictions legally permissible under section llEE ATA. In support of his contentions he placed reliance on Federation of Pakistan v. Mr.Amatul Jalil Khawaja (PLD 2003 SC 442), Arab Akbar Dil v. Government of Sindh (PLD 2005 Kar. 538), Ghulam Qasim v. Government of Punjab (2020 MLD 166), Muhammad Irshad v. Government of the Punjab (2020 PCr.LJ 206), Allah Nawaz v. Government of Khyber Pakhtunkhwa (2019 MLD 1016 ), Safeer Shah v. The State (2016 MLD 986), Baram Khan v. Government of Balochistan (PLD 2019 Balochistan 120), Aurangzeb Khan v. Government of Khyber Pakhtunkhwa (2016 MLD 330), Waqas Hussain v. Government of Khyber Pakhtunkhwa (2016 PCr.LJ 972), Syed Mubbashar Raza v. Government of Punjab (PLD 2015 Lahore 20), Muhammad Nadeem v. Government of Punjab (PLD 2010 Lahore 371) Muhammad Din v. District Magistrate (1992 MLD 107), Muhammad Irshad v. Government of Punjab (2020 PCr.LJ 206), Ghulam Qasim v. Government of Punjab (2020 MLD 166), Allah Nawaz v. Government of Khyber Pakhtunkhwa (2019 MLD 1016 ), Baram Khan v. Government of Balochistan (PLD 2019 Balochistan 120), Rehmatullah alias Rehmatoli v. Government of Khybe r Pakhtunkhwa (PLD 2018 Peshawar 17), Mst. Sana Jamil v.
Government of Punjab (2016 PCr.LJ 424), Waqas Hussain v. Government of Khyber Pakhtunkhwa (2016 PCr.LJ 972), Safeer Shah v. The State (2016 MLD 986), Aurangzeb Khan v. Government of Khyber Pakhtunkhwa (2016 MLD 330)(sic), Syed Mubbashar Raza v. Government of Punjab (PLD 2015 Lahore 20)
(sic) Muhammad Nadeem v. Government of Punjab (PLD 2010 Lahore 371)(sic), Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marw at (1999 PCr.LJ 1558) and numerous definitions of "enemy alien " from various dictionaries.
8. Learned Advocate General Sindh has contended that the correct test for determining whether the material placed before the Home Secretary justifie s issuing a preventive detention order ought to be on a subjective basis although he has conceded that in Pakistan the current test is an objective one based on the Supreme Court case of Pakistan v. Mr. Amatul Jalil Khawaja . He has urged this court that on account of the changing times especially in terms of the war on terror which accord ing to him arose in Pakistan when the Army Public School (APS) was attacked in 2014 by militants that the appropriate test ought to be the subjective one which should be made on an assessment of the material made by an expert in assessing intelligence material which in this case was the Home Secretary rather than judges; that a hybrid test primarily based on expertise and. subjectivity be introduced to analyze the intelligence and determine whether a preventive detention order was justified especially as intelligence could never be precise and that was why it was better that it be determined by the competent authority instead of the courts especially as such issues were very sensitive and concerned national security and in this respect he placed reliance on a number of Judgments from India, Malaysia, Singapore, Nigeria and Zimbabwe in support of his contention. He also relied on certain Pakistani Judgments from Lahore and Quetta concerning the upholding of preventive detention orders. These judgments although being only of persuasive value nevertheless have been considered by us and we have observed that by and large they are distinguishable from the present case as they concerned detention under the MPO, concerned a first preventive detention order and even a second but not a third which has been issued and challenged in this case, they do not all relate to terrorism which the second and third preventive detention orders are related to in this case and a number of the persons against whom preventive dentition orders were made were already undergoing a trial although they may have been granted post arrest bail whereas the petitioner has been acquitted on appeal; even otherwise he conte nded that there was sufficient material to justify the preventive detention orders issued by the Government of Sindh based on the material which had been placed before the Home Secretary who had issued the preventive detention orders; he further contended that the petitioner fell within Article 10(9) of the Constitution and as such was an "enemy alien" and as such Article 10 of the Constitution did not apply to the petitioner as he owed no allegiance to Pakistan and was a part of the war on terror against Pakistan and therefore he had no right to a review board or to be released until determined by he competent authority . In support of his contentions he has placed reliance on Moulvi Farid Ahmad v. Government of Pakistan (PLD 19651 (W.P.) Lahore 135), State of Maharashtra v. Bhaurao Punjabrao Gawande (AIR 2008 Supreme Court 1705 ), Liversidge v. Anderson and another (All England Law Reports Annotated-3 38), Miraj Muhammad Khan v. Government of West Pakistan and Superintendent of Jail, Karachi (PLD 1966 (W.P.)
Karachi 282), Syeda Shamim Akhtar v. Government of Pakistan and 3 others (1996 PCr.LJ 326), Aamna Bibi v. Government of Balochistan (2003 YLR 1460 ), Saadullah v. Secretary , Home Depart ment and another (PLD 1986 Quetta 270), Federation of Pakistan v. Mrs. Amatul Jalil Khawaja (PLD 2003 SC 442), Syed Muhammad Ali v. Government of Balochistan (1999 PCr.LJ 1490), Malik Mushtaq Anwar v. District Magistrate, Lahore (1979 PCr.LJ 658), Part Cargo v Steamship "Zamora " (Privy Council Appeal No.109 of 1915), R. v. Secretary of State for the Home Department, ex parte Hosenball (All England Law Reports-452), Secretary of State for the Home Department v. Rehman (2001 UKHL-47), Karpal Singh v. Minster for Home Affairs and others (1989 LRC (Const) Malaysia -648), Teo Soh Lung v. Minister for Home Affairs and others ((1990) LRC (const) Singapore 490), Chan Hiang Leng Colin and others v. Minister for Information and the Arts (1997) 1 LRC -107 Singapore), Wang and others v. Chief of Staff, Supreme Headquarters, Lagos and others (1986) LRC (Const) Nigeria 320), H. Shah v. State of W.B. (AIR 1974 SC 2154), Mohd. Subrati v. 'State of W.B. (AIR 1973 SC 207), Reference No.01 of 1965 decided on 8th February 1965 (PLD 1966 (W.P.) Karachi 160), Bull v. Minister of Home Affairs ((1987) LRC (Const) Zimbabwe 547), excerpt from The Judiciary and Emergency Powers Australia, Second Edition, Cambridge University Press and various Terrorism laws applicable in the UK which concern pre charge detention and scholarly articles on this issue. Learned Additional Attorney General produced a notification issued by the Ministry of Interior where by the Federal Government had delegated its powers through section 33 of the ATA to Home Secretaries to issue orders under section llEE and as such in this respect he contended that the preventive detention orders issued by the Government of Sindh under the ATA had been legally issued. Addl. Prosecutor General Sindh under instructions of the Prosecutor General Sindh adopted the arguments of learned Advocate General Sindh.
9. We have heard the parties at length, considered the record and the relevant law including that cited at the bar .
10. At the outset we would like to note that Pakistan is governed by the Constitution of 1973 as amended from time to time which is a blend of secular law and Islamic law as is made clear by both the preamble of the Constitution and the Objectives resolution at Article 2(A) which forms a part of the Constitution. When the Constitution is read in a holistic manner it is apparent that the form of Government in Pakistan is one of Parliamentary democracy based on the trichotomy of powers between the executive, legislature and the judiciary where checks and balances on each organs powers are ensured by the other organs of State. The Constitution through numerous of its Articles ensures the independence of the judiciary and the rule of law and the due process of law as would be expected in any civilized society and Islamic welfare State.
11. In our view one of the key attributes of our Constitution is that it seeks to protec t and safeguard the rights of the individual from misuse or abuse of executive powers and does so by enshrining a number of fundamental rights which are found in Chapter one of the Constitution. It also in our view aims to strike a fair, legal and legitimate balance in preventive detention in appro priate cases in the interest of the State based on sound reasons and prevent such detention from being misused for ulterior purposes by the executive.
12. We set out below a number of the Articles of the Constitution in material part which we consider are relevant in terms of this petition with the most important ones, in our view , being Articles 9 and 10.
Article 4 of the constitution (although not a fundamental right as per Chapter One of the Constitution) reads as under:-
4. Right of individuals to be dealt with in accordance with law, etc.---( 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 property 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.
Chapter One of the Constitution creates certain fundamental rights.
Those Articles of the Constitution which create fundamental rights and set out the consequences of their breach which we consider applicable to the petition in hand are set out as under in material part.
8. Laws inconsistent with or in derogation of Fundamental Rights to be void.---( 1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter , shall, to the extent of such inconsistency , be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this. clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to--(a) Any law relating to member s of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order , for the purpose of ensuring the proper discharge of, their duties or the maintenance of discipline among them; or 1[(b) any of the--
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in, Part I of the First Schedule;] and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter .
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in 2[Part II of the First Schedule] into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation. ---If in respect of any law 3[Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly .
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
9.---Security of person. No person shall be deprived of life or liberty save in accordance with law .
10. Safeguards as to arrest and detention.---( 1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced befor e a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity , security or defense of Pakistan or any part thereof, or external affairs of Pakistan, or public order , or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding 1[three months] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of 1[three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, suf ficient cause for such detention.
Explanation I.- In this Article, "the appropriate Review Board" means,
(i) in the case of a person detained under a Federal Law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court: and
(ii) in the case of a person detained under a Provincial Law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
Explanation II.---The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(5) When any person is detained in pursu ance of an order made under any law providing for preventive detention, the authority making the order shall, 2[within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manger prejudicial to public order and twelve months in any other case: Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy 3[or who is acting or attempting to act in a manner preju dicial to the integrity , security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti- national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity].
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family .
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
10A. Right to fair trial.--- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.]
14. Inviolability of dignity of man, etc.---( 1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence.
15. Freedom of movement, etc.--- Every citizen shall have the right to rema in in, and, subject, to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.
25. Equality of citizens.---( 1) All citizens are equal before law and are entitled to equal protection of law .
(2) There shall be no discrimination on the basis' of sex 1[ ****].
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
13. In our discussion about the legality of the preventive detention orders we need to keep these Articles of the Constitution in mind which are applicable to all citizens of Pakistan.
14. The First Preventive Detention Order (First PDO) under section 3(1) of the West Pakistan Maintenance of Public Order 1960 (MPO) dated 10.04.2020 was issued by the Government of Sindh for a period of 3 months.
15. For ease of reference both section 3(1) MPO and the First PDO are set out below; 'S.3 (1) MPO. Power to arrest and detain suspected persons .- --(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order , and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend from time to time the period of such detention for a period not extending six months at a time.
(bold added)
16. First PDO GOVERNMENT OF SINDH HOME DEP ARTMENT
NO.S0 (JUDLII)/HD/6-3/2020: Whereas, a letter is received from Deputy Inspecto r General of Police South Zone, Karachi vide No.DIGP/SZ/ZIB/165/2020 Karachi dated 10.04.2020, wherein he has reported that Abdul Hameed Bughti son of Ali Murad Bughti imprisoned in Central Jail in case FIR No.145/20 05 under section 3/4 Explosive Act/302/324/427/34, P.P.C. read with 7 A.T.A. of Police Station Artillery Maidan, is being released from Jail custody on 10.04.2020. The DIGP South Zone Karachi has informed his, presence at any public place is likely to pose grave threat to the public safety and cause breach of peace and tranquility , therefore, he has recommended that he may be detained for a period of 90 days;
2. AND WHEREAS , the Government of Sindh on the basis of request and considering the merits of the case is satisfied that there is serious apprehension of public safety , in case the person is released he may act against the interest of the country and public and that the presence of Abdul Hameed Bughti son of Ali Murad at any public place is likely to pose grave threat to the public safety and cause breach of peace and tranquility;
3. AND NOW THEREFORE , in exercise of the powers under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Government of Sindh has sufficient reason to believe that Abdul Hameed Bughti son of Ali Murad be arrested and detain ed for a period of 90 days from the date of arrest. His custody shall be placed under the Senior Superintendent of Central Prison Karachi.
4. He shall be at liberty to make a representation to the Provincial Government against this order .
Sd/, (DR. MUHAMMAD USMAN CHACHAR)
ADDITIONAL CHIEF SECRET ARY HOME DEP ARTMENT Karachi dated 10.04.2020"
17. That a few days prior to the expiry of the First PDO a Notification dated 07.07.2010 was issued by the Government of Sindh which placed the petitioner on the 4th Schedule of the ATA by virtue of section 11EE ATA and thereafter one day later on 08.07.2020 the Second PDO under section 11EEE of the Anti-T errorism Act, 1997
(ATA) dated 08.07.2020 was issued by the Government of Sindh for a further period of 3 months.
18. For ease of reference section HEE and section 11EEE ATA 1997, the Notification and the Second PDO are set out below; SAME. Proscription of Person. 1[(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, whether domestic of foreign including governmental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and on-banking companies and international institutions.] 1[(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 1* * * 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 be specified: Provided that where he fails to execute the bond or cannot produce a surety or sureties to the satisfaction of the District Police Officer order him to be detained and produced within twenty-four hours before a court which shall order him to be detained in prison until he executes the bond or until a satisfactory surety or sureties if required, are available or , failing that the term of the order under clause (a) expires: Provided further that where he is a minor , the bond executed by a surety or sureties only may be accepted;
(b) require any such person to seek prior permission from the officer in charge of the Police Station of the concerned area before moving from his permanent place of residence for any period of time and to keep him informed about the place he would be visiting and the persons, he would be meeting during the stay;
(c) require:-
(i) that his movements to be restricted to any place or area specified in the order;
(ii) him to report himself at such times and places and in such mode as may be specified in the order;
(iii) him to comply with both the direction; and
(iv) that he shall not reside within areas specified in the order;
(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 in charge of the Police Station with in 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 station s, 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; and (0 monitor and keep surveillance over the activities of such person through police or any other Government agency or any person or authority designated for the purpose.
(3) [Where any person is aggrieved by the order of the Federal Government made under sub- section (1), he may, within thirty days of such order , file a review application, in writing, before the Federal Government stating the grounds on which it is made and the Government shall, after hearing the applicant, decide the matter on reasonable grounds within ninety days.] (3A) A person whose review application has been refused under subsection (3) may file an appeal to the High Court within thirty days of the refusal of the review application.]
(4) Any person who violates and direction or order of the Federal 1* * * or any terms of bond referred to in subsection (2), shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.] 11EEE.(1) Powers to arrest and detain suspected persons.--
(1) Government if satisfied that with a view to prevent any person whose name is included in the list referred to section HEE, it is necessary so to do, may, by order in writing, direct to arrest and detain, in such custody as may be satisfied, such person for such period as may be specified in the order , and Government if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention for a total period not exceeding twelve months.
(2) The provisions of Article 10 of the Constitution of the Islamic Republic of Pakistan shall mutatis mutandis apply to the arrest and detention of a person ordered under subsection W .]
19. The Notification.
GOVERNMENT OF SINDH HOME DEP ARTMENT NOTIFICA TION NO.SO(JUDL.II)/HD/6-3/2020: Whereas, the Inspector General of Police Sindh Karachi vide letter No.AIGP/Legal/CP0/ ATMC/2850/2020 dated 07.07.2020 has recommended in view of report of Additional Inspector General of Police Counter Terrorism Department (CTD) Sindh, Karachi vide letter No.Addl.IGP/ CTD/ NAP-P AP/ 4th SCHDL-1 / 5652-58/ 2020/ dated 07.07.2020 to place/ enlist the following one (01) person on the list of Fourth Schedule of Anti-T errorism Act 1997:-- Sr# Full Name 01 Abdul Hameed Bugti son of Ali Murad Bugti AND WHEREAS , section 11-EE of the said Act read with National Crisis Management Cell, Ministry of Interior Notification S.R.O. (I)/ 2014 dated 19.10.2014 empowers the Government of Sindh/Home Secretary of Province to notify the name(s) of such person(s) to be entered in the Fourth Schedule of the said Act; NOW THEREFORE , in exercise of the powers conferred under section 11-EE of the Anti-T errorism Act, 1997, the name of above mentioned person is hereby entered in the Fourth Schedule of the ATA, Act, 1997, for a period of three years with immediate ef fect, unless otherwise rescinded or withdrawn by the Government of Sindh.
Without prejudice to any other action which may lie under any law for the time being in force, he shall:--
(a) Execute a bond with one or more sureties to the satisfaction of the District Police Officer in the territorial limits of which the said person ordinarily resides, or carries on business, for his good behav ior and not to involve in any act of terrorism or in any manner advance the objectives of the organization referred to in subsection (1) of section 1 1-EE for such period not exceeding three years and in amount Rs. 100000/.
Provided that where he fails to execute the bond or cannot produce a surety or sureties to the satisfaction of the District Police Officer order him to be detained and produced within twenty four hours before a Court which shall order him to be detained in prison until he executes the bond or until a satisfactory surety or sureties if required, are available or , failing that the term of order under clause (a) expires:
(b) Inform the officer in charge of the Police Station of the concerned area before moving out of his place of residence including the place he is moving to within the restricted area and person he is visiting or any person visiting him;
(c) Be required:--
(i) that his movements to be restricted to the neighborhood and surroundings of residence registered with Police Station.
(ii) to get written permission from SSP concerned for any movement out of restricted area;
(iii) to comply with both the directions;
(d) Report to the Police Station concerned once in a week.
His activities shall be monitored and kept under surveillance by the concerned Senior Superintendent/Superintendent of Police and any other government agency or any person or authority as may be designated any time for this purpose by the Government of Sindh.
The listed person(s) may appeal to the Government of Sindh in terms of Section 11-EE (3) of the Act within 30 days of issuance of this notification.
ADDITIONAL CHIEF SECRET ARY HOME DEP ARTMENT Karachi dated 07.07.2020 "
20. The second PDO "GOVERNMENT OF SINDH HOME DEP ARTMENT
NO.SO(Jud-II)/HD/6-3/2020: Whereas, Inspector General of Sindh vide letter No. AIGP/ Legal/ CPO/ ATMC/ 2850/ 2020 dated 07.07.2020 forwarded the recommendations as received from the office of the Additional Inspector General of Police (CTD), Sindh letter No.Addl. IGP/CTD/NAP-P AP/4thSCHDL1/5652-58/2020 dated 07.07.2020 for inclusion of following one (01) person affiliated with terrorist organization and involved in terrorist acts and was placed in the 4th Schedule under section I lEE of the Anti-T errorism Act, 1997;
1. Abdul Hameed Bugti son of Ali Murad Bugti Whereas being satisfied the Government of Sindh included the above person in the 4th schedule under the Anti- Terrorism Act, 1997 vide order No. SO(Jud-II)HD/ 6-3/ 2020 dated 07.07.2020.
Now the DIGP South has reported vide letter No. DIGP/SZ/ ZIB/258/2020 dated 07.07.2020 that while being on 4th Schedule the above person will be able to move around/establish or re-establish networks for the purpose of furthering any terrorist activity being af filiated in past with such organizations.
NOW THEREFORE the Government of Sindh being satisfied that there exist apprehension that above named person may indulge in networking / terrorism if released and therefore is required to be detained for the purpose of maintaining peace and tranquility by way of detaining him and hence under section 11-EEE of Anti-T errorism Act, 1997 hereby direct that above person namely Abdul Hameed Bugti son of Ali Murad Bugti be arrested and detained for a period of 03 months. His custody shall be placed under the Senior Superintendent of Central Prison, Karachi. The order shall be served upon the person named above who shall have th,e right to consult and be defended by legal petitioner(s) of their choice.
Sd/- ADDITIONAL CHIEF SECRET ARY HOME DEP ARTMENT Karachi dated 08.07.2020"
21. That prior to the expiry of the Second PDO the Third PDO under section 11EEE of the Anti-T errorism Act, 1997
(ATA) read with Articles 10(5) and 10(9) of the Constitution dated 06.10.2021 was issued by the Government of Sindh for yet another period of 3 months.
22. The Third PDO is set out below for ease of reference: "GOVERNMENT OF SINDH HOME DEP ARTMENT
NO.SO(JUDLII)/HD/6-3/2020: Whereas , Deputy Inspector General of Polic e South Zone Karachi vide No.DIG/SZ/ ZIB/ 767/2020 dated 06.10.2020 , has recommended for the preventive detention of the Abdul Hameed Bughti affiliated with anti-state elements and involved in terrorist acts and whereas secret reports received from concerned agencies also support the contention of police 'against Abdul Hameed Bughti;
2. AND WHEREAS , the Government of Sindh after carefully considering the reports and inputs from relevant law enforcement agencies is satisfied that the grounds exists for extending preventi ve detention of the above said person;
3. AND NOW THEREFORE, the Government of Sindh after being satisfied, and in continuation of this department order of even No. dated 08.07.2020, hereby directs that the person named above be detained for a further period of three months on expiry of current detention under section 11EEE of ATA 1997 read with Articles 10(5) and 10(9) of the Constitution of Islamic Republic of Pakistan. His custody shall be placed under the Senior Superintendent of Central Prison Karachi.
Sd/- ADDITIONAL CHIEF SECRET ARY HOME DEP ARTMENT Karachi dated 06.10.2020"
23. This Third PDO is due to expire on 05.01.2022.
24. At the outset we find that the Home Secretary had the lawful authority to issue a Notification under section 11- EE of the ATA which power had been delegated to him under section 33 A.T.A. by the Federal Government. As section 11EEE A.T.A. refers to "Government " which as per the definition section of the ATA can be either Federal or Provincial Government the Home Secretary also had the authority to issue an order under section 1 1EEE A.T.A.
25. We note that both the first PDO and the second PDO have now expired and are no longer in the field and as such we shall not determine their legality . Their significance so far as this petition is concerned is to provide us background information being a part of the so called, "facts and circumstances of the case " and as such reveals to us that the First PDO was issued immediately after the petitioner was acquitted by this court and was lawfully entitled to be released and as such deprived him of his liberty for 30 days, that it was based on information provided by the police and that immediately prior to its expiry the petitioner was notified by the Government of Sindh as being on the 4th Schedule of the ATA by virtue of section 1 1 EE A.T.A. and on its expiry the Second PDO under section 11EEE was immediately issued and came into effect which ensured that the petitioner remained in jail for another 30 days and that it was issued under the ATA and not the MPO on recommendations made by the police.
26. We will therefore rule only on the legality of' the Third and final PDO whilst considering the background to the first and second PDO's to assist us in determining both the legality of the Third PDO and the bona fides of the Government of Sindh in issuing the three successive PDO's.
27. To assist us in reaching this decision we shall briefly consider the backgroun d of petitioner Abdul Hameed Bughti . The petitioner and two other co-accused were convicted by the trial court for being connected with a car bomb explosion outside the Muslim Commercial Bank, PIDC House, Karachi which was an act of terrorism which resulted in the death of 4 people and serious injuries to many others which as mentioned above lead to the petitioner being sentenced to death. The petitioner's co-accused were sentenc ed to death by a different and separate judgment of the trial court as at that time the petitioner was an absconder who was later tried separately .
At the time of their trials the petitioner and the other co-accused were in our view regarded/treated as members of the Balochistan Liberation Army hereinafter referred as (BLA) which was a proscribed organization which was at that time active in Pakistan and still remai ns so today in Anti State activities as was recently shown by an attack on the Chinese embassy and Stock Exchange in Karachi for which the BLA claimed responsibility . Although the offenses for which the petitioner was originally charged with were 14 years ago we have not seen any material to suggest that he is still not a part of the BLA although his activities connected with the BLA have been restricted whilst in jail as such in considering the material before us we are of the view that on an objective assessment of the material before the competent authority the Home Secretary was legally justified in placing the petitioner on the IV schedule of the ATA under section lIEE as being a member of the BLA based on an objective assessment and satisfaction of the material before the Home Secretary which as mentioned above is (BLA) quite active these days in Pakistan. However the reason given by AIGP/ Legal II in his comments is "in order to effectively monitor his activities " which does not appear to make sense to us if the very next day he is detained under section 11 EEE ATA as he was through the second and third PDO's as it appears a recommendation had been made to monitor his activities which indicates that he should be released from jail for this purpose.
28. Be that. as it may we uphold the Notification placing the name of the petitioner on the 4th schedule of the ATA by virtue of section l1EE as being a member of the BLA and these restrictions imposed upon him under section llEE of the ATA for monitoring purposes as given by AIGP/Legal II in his comments is "in order to effectively monitor his activities " ought to give suf ficient safe guards to the State in the event of his release from jail.
29. With regard to whether the satisfaction of the Home Secretary should be subjective or objective despite the authorities cited by the learned advocate general in particular from the UK we are not persuaded by such a contention as a number of such authorities mostly relate to a time of a declared International Armed conflict which is not the case in Pakistan today as we shall come to later in this order . It may be that a number of other jurisdictions such as India, Malaysia, Singapore, Nigeria and Zimbabwe have left the decision to assess the material with the competent authority or executive rather than judges in order to satisfy itself as to the need to pass a preventive detention order and perhaps in those other foreign jurisdictions the deciding authority has greater expertise. In any event as will be mention ed later in this order it is for each country to pass its own laws to meet the various challenges facing its own environment at any particular time. It is true that most judges do not have particular expertise in assessing and evaluating intelligence material but Judges have been doing so in this country since partition. It may be that some bette r expertise is required but that is for Parliament to determine and pass appropriate laws keeping in view that Article 10(4) of the Constitution has provided for a review board comprising of a judge to review preventive detention orders in the 1956, 1962 and 1973 Constitutions and this situation was not changed even after the cross party Rabbani Committee considered each Article of the 1973 Constitution and made substantial changes to many Articles of the Constitution in 2010 through the 18th Constitutional amendment which was after the so-called war on terror had commenced in 2011 as per the learned Advocate General. Even otherwise in terms of expertise it is not always necessarily the case that a judge may be less well experienced in analyzing intelligence material than the competent authority and have less expertise in order to evaluate the material placed before the court. For example, in the case in hand the material was considered by two Judges of this court with considerable experience in criminal. law as both lawyers and Judges including in ATA cases whilst the Home Secretary who issued the last preventive detention order in this case had by his own admission only been home Secretary less for less than one year with the rest of his career having been spent as an Ombudsman, Secretary Health, Commissioner , Secretary Services and General Administration, assigned to Canada where he was involved with the CAA and Consul General, DCO and in Finance who as such in this particular case does not appear to have any particular expertise to analyze intelligence reports over that of the Judges. If such an argument were to be accepted it might also lead to further complications. For example, the FBR officials and Tribunals adjudicating upon taxation disputes and the lawyers appearing before them usually have far more experience and expertise in pleading and determining taxation issues than High Court judges who may be assigned an appeal against their order . Could then a very experienced tax lawyer argue that a High Court Judge or even Supreme Court Judge could not hear the appeal as he/she had lesser expertise than the Taxation Tribunal which had decided the matter and attempt to debar the High Court from hearing the matter . In our view such a anomalous contention would be without substance as the law has given the High Court the power to hear the appeal and likewise the current law allows the High Country to rule on the legality of PDO's passed by the executive by way of judicial review which it has been doing for the last 70 years as shown by the numerous Pakistani case laws relied upon by each side. Even Review Boards under Article 10 of the Constitution consist of High Court Judges whose role along with others is to evaluate the intelligence material which has also been the case in the 1956 and 1962 Constitutions. Most significantly , if we were to accept this contention of subjective analysis of the intelligence material and the courts playing no role in this respect this would in effect oust the Courts jurisdiction of judicial review which would mean that there would be no check and balance on the executive which may pass such PDO's orders malafidely and/or in a whimsical and arbitrary manner without application of mind and the detained person would have no judicial recourse for redressal of his grievance which proposition we do not find acceptable keeping in view Article 199 of the Constitution and one of the main purposes of the Constitution being to protect is citizens against misuse and or abuse of executive authority . Pakistan is not a police State as per its constitution but as mentioned earlier one based on the trichotomy of powers where checks and balances operate on each organ of State. Furthermore, although the learned Advocate General placed great weight on the UK case of Liversidge v. Anderson and another (All England Law Reports Annotated-338), 1941 in support of the subjective test which was decided during World War Two we have found that the Supreme Court of Pakistan considered this case in terms of preventive detention in the case of Ghulam Jilani v. Government of West Pakistan (PLD 1967 SC 373) as approved and referred to in the case Mir Abdul Baqi Baluch v. Government of Pakistan and others (PLD 1968 SC 313) and rejected the same along with its finding of subjective considerations by the competent authority prevailing and not being subject to interference by the courts in the following terms at P.315 as under which still remains the law in Pakistan today as we shall come to later; "The trend of decisions both in this country as well as in England has been to regard the decision in Liversidge's case as limited to the interpretation of Regulation 18(B) of the English Defence (General)
Regulations, 1939 as a special war measure.
The majority decision in Ghulam Jilani's case altered the law laid down in Liversidg e's case only to the extent that it is no longer regarded as sufficient for the executive authority , merely to produce its order , saying that it is satisfied .
It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner . The wording of clause (b)(i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review . If this function is to be discha rged in judicial manner , then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned.
After the decision in Ghulam Jilani's case the High Court should have examined the grounds of detention to test their reasonableness. On this ground alone, this appeal was liable to be allowed and the case sent back to the High Court for rehearing, after examining the materials produced before it.
Though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, is this that the former connotes a state of mind boarding on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion. If so, then it is not reasonable to presume that the law by making such significant differentiation intended to cast a duty of a more onerous nature upon the person charged with the duty of being satisfied and to "satisfy" the Court that he had acted in such manner ".(bold added)
30. Although we recognize that times may be changing especially in terms of terrorist threats we are not convinced for reasons mentioned later in this order and pursuant to the latest order of the Supreme Court on preventive detention that at least in Pakistan the requirement of satisfaction should be based on subjective assessment of material as opposed to an objective satisfaction which is the current law in Pakista n as laid down by the Supreme Court which the High Courts must follow as per the command of the Constitution as was held in the case of Federation of Pakistan v. Mrs.Amatal Jalil Khawaja (PLD 2003 SC 442) which dealt with PDO's in great detail and reviewed all the then existing laws on PDO's and laid down the principles for the courts to follow in such cases in 2003 and held at P.454 concerning the required level of satisfaction in respect of material which justified a PDO being issued against a person and at P .467 in terms of the test to be applied as under; "We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of Constitution of Islamic Republic of Pakistan, the Security of Pakistan Act, 1952, the Qanun-e- Shahadat Order , 1984 and judicial prece dents. It would be relevant to mention here at this juncture that our, security laws and anti-terrorism enactment are silent to the effect that AI-Qaeda is a terrorist organization having its network at global level and is a serious threat to national/ international piece, security and tranquility . We have also perused the order impugned with care and caution. The pivotal question which needs determination would be as to whether sufficient incriminating material justifying the detention of respondents under section 3(1)(b) of the Security of Pakistan Act, 1952 was available which could not be appreciated in its true perspective by the learned Single Judge who erred in substituting his own opinion to that of Federal Government by misconstruing the provisions of section 3 of the Securit y of Pakistan Act, 1952 and misinterpreting the word "satisfaction " as used therein which resulted in serious miscarriage of justice?
Before the said question could be answered in this particular context we have thrashed out almost the entire law available on the subject, detail whereof is as follows:-- .............................................................................. ..............................................................................
6. The judicial consensus seems to be as under:- (i)"An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention (ii) that satisfaction should be established with regard to each of the grounds of detention and if one of the rounds is shown to be bad non-existent or irrelevant the whole order of detention would be rendered invalid (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention and (iv) that the detaining authority must place the whole material, upon which the order of detention is based before the Court notwithstanding its claim of privilege with respect to any document the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention: that each of the requirements of the law relating to preventive detention should be strictly complied with; that 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then 'as soon as may be'; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention that is they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice." (Liaqat Ali v.
Government of Find through Secretary , Home , PLD 1973 Karachi 78 ). (Emphasis provided)
(ii) "The right of a person to a petition for habeas corpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate Legislature . If the arrest of a person cannot be Justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be relea sed forthwith . (PLD 1965 Lah.
135). He need not wait for the opinion of the Advisory Board before praying for a habeas corpus. (AIR 1952 Cal.
26). However , jurisdiction of High Court while examining the material before the detaining authority is not unlimited.
When an order passed by an executive authority detaining a particular person is challenged by invoking extraordinary jurisdiction of High Court it is always by means of judicial review and cannot be treated as appeal or revision. The Court cannot substitute its discretion for that of administrative agent. The only function of the Court in such cases is to see whether or not order of detention is reasonable and objective." (PLD 1979 Lah. 741.
(Emphasis provided).
(iii) "The Court can see whether the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of the detaining authority or one merely professed by the detaining authority . (AIR 1953 SC 451) A duty has been cast upon the High Court whenever a person detained in custody in the Province is brought before that Court to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ." This Constitutional duty cannot be discharged merely by saying that there is an order which says that he is being so detained. If the mere production of an order of detaining authority , declaring that he was satisfied, was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty. Therefore it cannot be said that it would be unreasonable for the Court, in the proper exercise of its Constitutional duty to insist upon a disclosure of the materials upon which the authority had acted so that it should satisfy itself that the authority had not acted in an "unlawful manner ". (Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313). (Emphasis provided).
(iv) "High Court cannot claim in the exercise of writ jurisdiction to usurp the functions of the authority in which power has been vested nor to substitute their own decision for the decision of that authority . Nor can the Court insist on being satisfied that there were materials upon which it itself would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. The Court in order to be satisfied as required by the Constitution must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations. The question however , that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 199 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baqi Baluch PLD 1968 SC 313. Otherwise if an authority could protect himself by merely saying that he believed himself to be acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner . The presumption is that every impriso nment without trial and conviction is prima facie unlawful ."
(Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14). (Emphasis provided).
(In the case of Abdul Baqi Baluch PLD 1968 SC 313 it was indicated that it is for the High Court to consider as to whether there were grounds upon which any reasonable person could have been satisfied as to the necessity of detention) ............................
Test to be applied.
"There could be no other opinion that it is for the High Court to examine while exercising its Constitutional Jurisdiction the material on which the satisfaction of the detaining authority is based and had to determine whether it was sufficient for the satisfaction of the detaining authority . Let we mention here at this juncture that when a privilege is claimed even the High Court would be competent to examine the document / material regarding which' privilege is sought in order to determine as to whether such privile ge is being claimed in advisedly , lightly or as a matter of routine. In this regard we are fortified by the dictum laid down in PLD 1968 SC 14; Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313); National Bank v. Faridsons Limited 20 DLR SC 249.
The High Court can examine the reasonableness of the grounds of detention so as to satisfy itself that the detenu has not been held in custody without lawful authority or in an unlawful manner . It is not the satisfaction of only detaining authority but judicial conscious is also required to be satisfied and thus in our opinion the satisfaction of detainin g authority should have been based on actual and real facts and not on mere suspicion, doubt or conjectural presumptions. " (bold added)
31. With regard to the mala fides on the part of the Government of Sindh and the legality of the third PDO we are guided by the findings in the case of Mrs. Amatul Jalil Khawaja (Supra) which held at P .499; "The words "without lawful authority" and "in lawful manner" appearing in Article 199(b) (i) of the Constitution cannot be considered as tauto logous or superfluous and in fact deserve due consideration.
"The words 'in lawful manner' used in Article 199(b)(i) of the Constitution have been used deliberately to give meaning and content to the solemn declaration under the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlaw ful manner one would inevitably have first to see whether the action is in accordance with law. If not, then it is action in an unlawful manner . Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principl es laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly , action taken upon extraneous or irrelevant consideration is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner ." (bold added)
32. The mala fides of the Government of Sindh in issuing three PDO's one after the other is apparent from the timings of the PDO's especially the first PDO which was issued immediately on the same day as the petitioner was acquitted by this court and communicated to Central Jail Karachi which in effect meant that the petitioner was acquitted in the morning, within a few hours the police found material to justify the detention, of the petitioner under the MPO, such material was sent to the Home Department which travelled on the same day up the bureaucratic chain which finally reached the Adl. Chief Secretary/Home Secretary on the same .day who on his own admission held several meetings and after . 'applying his mind in considering such material issued the first PDO on the same day which reached central prison Karachi on the same day as he was objectively satisfied based on the material before him that the First PDO was legally justified, likewise all the PDO's were esse ntially issued one after the other in a mechanical manner in order to keep the petitioner in jail, the fact that from the material we have seen in respect of all PDO's they did not legally justify the Government of Sindh by any stretch of the imagination issuing such PDO's on the basis of objective satisfaction of the material considered by them in respect of the petitioner and were based largely on suspicions and presumptions , the switch from the first PDO under section 3 MPO which was based on material gathered by the police (which could not have been gathered in one day) and not by any agency which was later put before us, the quick and devious change of tact to placing the petitioner on the 4th Schedule of the ATA based on section 11EE which lead to invoking section 11EEE ATA on the next day which once again the material we have seen could not have objectively satisfied/justified the issuing of the second PDO and finally the third PDO where towards the end of the second PDO the idea was born of treating the petitioner as an "enemy alien" under section 10(9) of the Constitution which would mean that he was not entitled to a review Board to consider the legality of his detention under Article 10(4) of the Constitution and presumably could be kept in detention indefinitely . Significantly in only the third and final PDO was it stated that the petitioner was being detained as an "enemy alien" under Article 10(9) of the Constitution which was clearly an afterthought by the Government of Sindh in order to thwart the petitioners ability to review his detention under the third PDO under Article 10(4) otherwise such wording would have appeared in the first PDO or at least the second PDO. Even otherwise the draftsmanship of the Third PDO reveals its hurried and self-contradictory nature designed to keep the petitioner behind bars for ever at all costs in that on the one hand it gives the petitioner a right to make a representative vis a vis his detention under Article 10(5) of the Constitution and then in effect takes away such right by declaring him as an "enemy alien" under Article 10(9). it is quite apparent from the material which we have seen that the Government of Sindh acted malafidely and in a mechanical manner in issuing the three PDO's one after the other with the sole intention of keeping the petitioner in jail after his acquittal and thus deliberately and illegally deprived him of his right to libert y without any legally justifiable reason and thus the third PDO is struck down as being issued mala fide by the Government of Sindh.
33. Significantly , when we asked the Home Secretary as to how one day after notifying the petitioner under section 11 EE ATA which recommended "monitoring" what material had been produced or circumstances changed to justify issuing a third PDO against the petitioner under section 11 EEE ATA he had no explanation. According to the Home Secretary the petitioner was an expert in making car bombs and if he was released a car could be driven to where the petitioner was staying and he could prepare a car bomb. If this argument is taken to its logical conclusion this would mean that the petitioner could never be released and would forever be detained without charge as this bomb making skill would always remain with the petitioner and as such until his death he could not be released due to the apprehension that he may make car bombs which is a conc lusion which we find troubling to say the least.
34. The third PDO is also struck down as being issued without lawful authority on the ground that the Government of Sindh patently failed to apply its mind in satisfying itself that the material placed before it on an objective assessment justified the issuance of the third PDO, let alone three continuous ones, when the material which we have seen did not come near such a standard as to deprive a person of his liberty for 9 months and thus the third PDO is also struck down as being issued without lawful authority as it was issued on the basis of vague and insufficient material largely based on suspicions and presumptions through which it was not possible for the Government of Sindh to be satisfied with on an objective assessment of such material to lead it to issuing the third PDO.
35. The next issue is whether the Govern ment of Sindh's reliance on Article 10(9) of the Constitution can justify the third PDO being issued by the Government of Sindh keeping in view that Article 10 (9) was not mentioned in either the first, or second PDO as a ground for detaining the petitioner and only emerge d as a reason/justification along with section 1 IEEE ATA when the third PDO was issued and came into ef fect.
36. It seems to us that the Government of Sindh's case in this respect primarily rests on the interpretation of Article 10(9) of the Constitution which once again is set out for ease of reference;
10. Safeguards as to arrest and detention.---( 1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) .....................
(3) etc..................
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
37. In effect the argument of the Government of Sindh is that the petitioner can be classified as an "enemy alien" within the meaning of Article 10(9) of the Constitution and as such the whole of Article 10 will not be applicable to him and that Article 10 concerning Safeguards as to arrest and detention including preventative detention will be ousted and as such the petitioner will have no right to challenge the detention order against him or even a. right of review and in ef fect can be kept in detention indefinitely after his acquittal of terrorism charges.
38. The question is therefore what is meant by the term "enemy alien" as contemplated in Article 10 (9) of the Constitution and whether the petitioner falls within the ambit of Article 10(9).
39. Within the trichotomy of powers it is the role of the legislature to make laws and the role of the judiciary to interpret those laws if such interpretation is necessary . It is well settled by now that if a statute has expressly provided for something without any ambiguity then there is no question of the courts interpreting the same as the legislative intent is clear and the Act/Ordinance must be given effect to unless it is deemed to be contrary to the constitution. The judiciary's role of interpretation of the statute only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the constitution and in such cases it is for the judiciary to interpret that piece of legislation by trying to ascertain the intent of Parliament in passing that legislation. The courts have absolutely no authority or power to substitute their views for those intended by the legislature simply because they may disapprove of a particular law and the way in which that law is being applied.
40. In this respect reference is made to the case of Justice Khurshid Anwar Bhinder v. Federa tion of Pakistan (PLD SC 2010 P .483.Relevant P .492-493) whereby it was held as under: "A fundamental principle of Constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only, plain but admits of but one meaning the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language besides declares, without more, the intention of the law givers and is decisive on it. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language .used in a statute is unambiguous and is in accord with justice and convenience, the courts cannot busy themselves with supposed intentions, however admirable the same may be because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. (bold added)
41. In our view based on a plain reading of Article 10 (9) and the arguments of the parties it is not precisely clear what is meant by the words, "enemy alien" and thus we must look to the intent of the framers of the Constitution in adding Article 10(9) and try to interpret who might fall within the term "enemy alien".
42. None of the parties have been able to greatly assist us on the original intent of including Article 10(9) in the Constitution and what the framers of the Constitution precisely wanted to convey through the words, "enemy alien" keeping in view that this would have potentially denied a class of persons their fundamental right regarding arrest and detention whether preventive or other wise along with a host of other fundamental rights. Thus, there must have been compelling reasons for adding Article 10(9) to the Constitution as potentially this could lead to unlimited detention without trial.
43. Significantly when the so called cross party Rabbani Committee went through each Article of the Constitution and made substantial amendments to the same through the 18th Constitutional Amendment in 2010 Article 10(9) remained untouched and thus we can safely assume that it would be applicable to some exceptional situations as no part of the Constitution can be rendered redundant.
44. No relevant Pakistani authority , Supreme Court or otherwise, concerning the interpretation of Article 10(9) was placed before us by either party .
45. We have observed that in both World War One and World War Two certain persons were described as "enemy aliens ".
46. Learned Advocate General has provi ded us with a number of definitions of "alien enemy" however we do not consider these to be relevant as the word s used in Article 10(9) are "enemy alien " which appears to us to have a different meaning to "enemy alien".
47. For example, learned Advocate General relied on the definition of "alien enemy" in the Law Lexicon as set out below; "Alien enemies of a country are those foreigners whose country is at war with it (Abbot. L Dict)
Lord Bacon defined an alien enemy to be "such a one as is born under the obeisance of such a king or state as is in hostility with the King of the realm" Coke Litt 239b, Rapalje & L. L Dict, Warton L. Lex.), Otherwise defined as "a person who, by reason of owing a permanent or temporary allegiance to a hostile power , becomes, in time or war, impressed with the character of an enemy" Burril Law Dict ( citing 1 Kent Comm 74, 2 Kent Comm63 )
48. And in the Corpus Juris Secondum as under; "Alien enemies are either temporary , or such as may become friends again; or specially permitted, or commorant, in the enemy's country at the time of the suspension of amity; or perpetual enem ies, or all savage and barbarian tribes who have no social, commercial, or diplomatic relations with other nations, and who do not recognize the obligations of international law and comity .
On the other hand, it has been held that, within the meaning of rules with respect to commercial intercourse, an enemy is not a person who is by nationality a subject or citizen of an enemy nation, but is a person, of whatever nationality , who resides or carries on business in enemy territory . The term also includes persons levying war against their own government, but it does not include mere rioters or insurgents, or thieves, robbers, or other private depredators. Moreover , a citizen and resident of, loyal territory is not an enemy , where he is not engaged in war, even though he is in full sympathy with the enemy forces and renders them his moral aid and cooperation, and a citizen of a revolting state who adheres to the parent government and remains within its territory is not an enemy of such government, although he intends to return to the revolting state after the cessation of hostilities."
49. The learned Advocate General, howe ver has also provided us with the definition of "enemy alien " as opposed to "Alien enemy " in Durga Das Basu's Commentary on the Constitution of India (9th Ed.) as under which shows a clear dif ference between an "enemy alien" and an "alien enemy"; "Enemy alien is a citizen or subject of a country at war with the country in which the citizen or subject is living or travelling."
50. Learned counsel for the petitioner also provided us with some definitions of "enemy alien" as opposed to alien enemy .
51. In Wikepedia "enemy alien" was defined as under; "In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict and who is liable to be apprehended, restrained, secured' and removed. Usually , the countries are in a state of declared war ."
52. In Wikepedia "enemy alien" was defined and treated as under in the United States during W orld W ar II; "A well-known example of enemy aliens were the Japanese citizens residing in the United. States during World War-II. Many of these Japanese and Japanese Americans were imprisoned in internment camps by President Roosevelt during wartime, alongside many German and Italian-Americans. However , many Japanese Americans and Italian-Americans were not actually "aliens", as they held American citizenship. The term "enemy alien" referred only to non-American citizens who were nationals of Axis countries. Included in this numbers were thousands of resident aliens who were prohibited from applying for citizenship by race-based naturalization laws; when war was declared against their native countries, their status changed from "resident" to "enemy" alien. Therefore, German American, Italian American and Japanese American permanent residents were classified as enemy aliens and interned as such. In total 10,905 Italian Americans and approximately 110,000 Japanese Americans were interned in many different camps and sites across the country . German Americans were held in more than 50 dif ferent locations.
53. In "enemy aliens" -internment in Canada 1914 to 1920 Canadian War Museum (online Source) which states as under in respect of who were regarded as enemy aliens and how they were treated during W orld W ar One; "During the First World War, national security fears and wartime prejudice drove the policy of internment, which lasted until 1920. During this time, Canada interned 8,579 people identified as "enemy aliens", mainly Ukrainian and German immigrants, across a network of 24 camps.
"Enemy Alien" was the term used to describe citizens of states legally at war with the British Empire, and who resided in Canada during the war. These included immigrants from the German Empire, the Austro- Hungarian Empire, the Ottoman Empire and Bulgaria. They could be interned for a number of reasons, including unemployment, attempting to leave Canada and failing to abide by government regulations."
54. W e have also found a number of definitions of "enemy aliens" as opposed to " alien enemies ". For example;
55. Black's Law Dictionary (6th Ed.) defines "enemy alien" as under; "Enemy alien. An alien residing or travelling in a country which is at war with the Country of which he is a national.
Enemy aliens may be interned or restricted"
56. As defined in Collins English on line Dictionary enemy alien in British English 'anami 'alien )
NOUN "a citizen of one country living in another country with which it is at war , and viewed as suspect as a result"
57. As defined in On Line Dictionary .com noun "an alien residing in a country at war with the one of which he or she is a citizen".
58. As defined in the free Dictionary on line. Definition in online infoplease en'emy al'lien Pronunciation: [key] "an alien residing in a country at war with the one of which he or she is a citizen".
Random House Unabridged Dictionary , Copyright 1997, by Random House, Inc., on Infoplea
59. Definition in what does that mean on line website Definition of: enemy alien "An alien living or interned in a country which is at war with his own country".
Read more: http:/www .whatdoesthatmean.com/ dictionary/ E/ enemy-al ien.htmIttixzz6f2p1ZnUM
60. The definition of Alien is also important .
61. Under the Pakistan Citizens Act 1951 in the definition section at Section 2 an alien is defined as; "alien" means a person who is not a citizen of Pakistan or a commonwealth citizen"
62. Definition of Alien in Encylopedia Britannica ; (on line)
"Alien , in national and international law, a foreign-born resident who is not a citizen by virtue of parentage or naturalization and who is still a citizen or subject of another country".
63. It would appear to us from the various definitions of "enemy alien" that these were a class of persons (a) who were not nationals in the State in which they were residing and (b) their State of Origin was at war with the State where they were residing. This would include persons who may have been nationals of the State but had their origins in the State with which the State they were currently residing in was at war .
64. In such situations during World War Two such enemy aliens even if they had not committed a crime were often placed in internment or detention centres during the course of the war due to the fear of the State in which they were residing that they might support their State of origin who the State they were residing in was at war with through acts of espionage, sabotage etc..
65. The classic example would be the internment of Japanese Americans or Japanese Americans of Japanese origin living in America after the Japanese attack on Pearl Harbor and where after the USA went to war with Japan.
Most of these Japanese/ American enemy aliens were sent to internment centres.
66. This is amply set out in a paper on "Enemy aliens; Treatment of the Japanese-American Internment during W orld W ar II in State U.S. History Standards". Oddvar Holmefjord Heen 2014 (on line source)
Overview of the Internment of Japanese Americans. The internment of Japanese Americans refers to the involuntary incarceration of approximately 120,000 individuals of Japanese ancestry under President Roosevelt's Executive Order 9066, from 1942 to 1945. The internees were both alien-born Issei (first generation born in Japan,) and citizen Nisei (second generation, U.S.-born naturalized citizens of the United States). Both groups, if they resided on the West Coast, were interned without due process.
Elsewhere on the mainland and in the Hawaiian Islands few were interned. The treatment of Japanese Americans was unlike that of any other wartime "enemy" population group. Although non-citizen German and Italian aliens were also interned, the total numbers of these people were small in comparison to that of the Issei. Furthermore, no U.S. citizens other than the Nisei were interned. Despite the recent attack at Pearl Harbor , only 1% of Hawaiian Japanese Americans were interned, as apposed to the en masse internment on the West Coast. Internment camps were set up in locations throughout the interior , most sharing the characteristics of barren land with extreme temperatures. Internees were housed in poor conditions and overseen by guards with machineguns and surrounded by watchtowers and barbed wire. Despite being banned from military service at the start of the war, a manpower shortage lead to ease on restrictions and a reasonably large share of the internees saw service in and for the U.S. military at some point durin g the war. In 1943 and 1944, the U.S. Supreme Court upheld different provisions of the internment by finding them constitutional, verdicts that were vacated by federal courts in the 1980s. Officially , the internment was the government's reaction to the threat of espionage and sabotage from Japanese Americans following the Japanese attack on Pearl Harbor . The general consensus today , however , is that the internment was the result of wartime hysteria, particularly in the press, racial prejudice stretching back half a century and a failure of leadership from all three branches of the U.S. government. (bold added)
67. Like wise the treatment of German citizens living in Britain when Germany and Britain were at war in World War Two is amply set out below in "My war service" by Michael Maynard (online source)
"My W ar Service Part 1 By Michael Maynard You are browsing in: Archive List - Books - My War Service by Michael Maynard 30 Workshop Control Unit REME British Army of the Rhine Contributed by: Michael Maynard People in story: Michael Maynard Location of story: England, Belgium, Holland, Germany Background to story: Army Article ID: A 5350303 Contributed on: 27 August 2005 The W ar Service of Michhel Maynard 1940 to 1947.
Friendly "Enemy" Alien "While the 'phoney' war continued the government had to consider the legal position of the German passport holders, who were, technically , enemy aliens. They knew , of course, that the bulk were refugees from Nazi Germany , who posed no threat to the country . A small number were not refugees and could be a potential threat.
As a result, tribunals were set up in various parts of the country , consisting mainly of local magistrates, who were to classify each 'enemy' alien into three categories after examination : A - meaning immediate internment, B- exemption from internment but subject to restrictions, C- total exemption with the status of 'V ictim of Nazi Oppression', The system seemed to have worked reasonably well with inevitable misjudgments through prejudice and ignorance of what had really been happening in Germany since 1933. To them it was 'Germans are Germans' or 'there are no good Germans', a carryover from the W .W.I As a result, my friend Hans was classified as a 'B'. His answers seem to have been too hesitant through nervousness. I became a 'C', by the same tribunal. This meant that I was free to travel outside London and could keep my bicycle.
Internment The invasion of Norway , Denmark and then the Low Countries brought in its train waves of rumours about the clever- infiltration by disguised German forces, e.g. soldiers disguised as nuns, treachery and treason by German symphasisers and similar stories - some unfortunately true. The term Quisling become symptomatic with this era. (He was a Norwegian Minister who had become a Nazi sympathizer .)
It put pressure on the government to watch out for any 'fifth column' in our midst and to do something about it. The catastrophic fall, of France and the expected fear of an invasion increased this pressure, leading to the slogan 'Intern the Lot'. (for details see 'Continental Britons' by Anthony Grenville).
Under this pressure, the government ordered the internment of those classified as 'B'. Thus, my friend Hans Strauss was collected from our lodging one day in early May 1940 while I was at .work..
After the fall of France the Home Office instructed Police Forces to arrest all German Nationals between 16 - 70 years of age for internment unless they were certain that they did not pose a threat. A very questionable criterion for individual senior officers whose workload was already very heavy . In most cases this meant 'Better safe than sorry'.
In my case this resulted in a policemen appearing one morning in June at my place of work to tell me that I was to be interned. They took me in a police car to my lodgings to collect essential items and then to Tottenham police station nearby; for the first and only time I was locked into a police cell in the U.K Everything was done on a friendly basis. Later the same day a small coach arrived with some other internees from the area and took us to Lingfield racecourse in Surrey . This had been taken over by the army as a temporary internment camp...........
68. Significantly , some guidance can be taken from the 1956 Constitution of Pakistan which contained a similar Article on "enemy aliens"' being Article 7 as set out below; 1956 Constitution Article 7 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person -(a) who for the time being is an enemy alien ; or
(b) who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall-authorize the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion, suf ficient cause for such detention.
Explanation: In this clause "the appropriate Advisory Board" means, in the case of a person detained under a Central Act or an Act of Parliament, a Board consisting of persons appointed by the Chief Justice of Pakistan, or, in the case of a person detained under a Provincial Act or an Act of a Provincial Legislature, a Board consisting of persons appointed by the Chief Justice of the High Court for the Province.
(5) When any person is detained in pursu ance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall af ford him the earliest opportunity of making a representation against tne order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
69. Likewise the 1962 Constitution at Article 8 also seemed to provide no relief for enemy aliens ; "8. Safeguards in Relation to Arrest and Detention.
1. A law authorizing the arrest or detention of persons should ensure that a person arrested or detained under the law;
(a) Is informed of the grounds of his arrest or detention at the time he is arrested or detained or as soon thereafter as is practicable;
(b) Is taken before the nearest Magistrate within a period of twenty-four hours after he is arrested or detained, excluding the time necessary to convey him to the Magistrate;
(c) Is released from custody at the expiration of that period unless further detention is authorized by a Magistrate; and
(d) Is at liberty to consult, and to be represented and defended by a legal practitioner of his choice.
2. This Principle does not apply to a law authorizing the arrest or detention of enemy aliens or providing for preventive detention, but law providing for preventive-detention;
(a) Should be made only in the interest of the security of Pakistan or of public safety;
(b) Shoud ensure that (except where the President or the Governor of a Province, in the interest of the security of Pakistan, directs otherwise) a person detained under the law is informed of the grounds of his detention at the time he is detained or as soon thereafter as is practicable;
(c) and Should ensure that a person is not detained under the law for a period longer than three months without the authority of a Board consisting of ;
(i) Where the law is a Central Law - a Judge of the Supreme Court, who shall be nominated by the Chief Justice of that Court, and another senior of ficer in the service of Pakistan, who shall be nominated by the President; or
(ii) Where the law is a Provincial Law - a Judge of the High Court of the Province concerned, who shall be nominated by the Chief Justice of that Court, and another senior officer in the service of Pakistan, who shall be nominated by the Government of that Province"
70. The same wording of "enemy alien" was also incorporated in Article 10(9) of the 1973 Constitution which is the Article dealing with arrest and detention and as mentioned earlier remained untouched in 2010 whilst the cross party Rabbani Committee went through each Article of the Constitution to consider potential amendments and indeed made numerous significant amendments to the Constitution yet Article 10(9) remains a part of our Constitution today even after further Constitutional amendments following the 18th Constitutional amendment.
71. Thus, in our view since "enemy alien" had become defined as set out by us during World War Two and such definition had been used in Britain of which India was formerly a Colony prior to partition in 1947 which gives a strong indication that the original fram ers of the constitution intended that the expression "enemy alien" as found in the 1956 Constitution was based on the definition of enemy alien as used and applied by the British during World War Two which was once again reflected in the 1962 Presidential Constitutional and the 1973 Parliamentary Constitution which Governs Pakistan today .
72. As per our definition of enemy alien the first limb to be fulfilled would be that the petitioner must be a non national . At this stage the Government of Sindh's argument fails as the petitioner is a Pakistani national. We are not persuaded that a person who had lost allegiance to a State was a non National unless the State itself had stripped him of that nationality which is not the case in so far as it relates to the petitioner . The petitioner might also be fighting for more rights for the Baluch people and not necessarily secession from Pakistan which indicates that he is an insurgent or terrorist who is seeking certain demands as opposed to an enemy alien. We have also not seen any material which links him or the BLA to another State.
73. Even otherwise the second limb of the test would need to be satisfied. Namely , there would also need to be a State of war between Pakistan and another country . In the current situation neither is Pakistan involved in any declared international armed conflict nor any declared internal armed conflict which might lead to the combatants having the benefit of at least some parts of the Geneva Conventions regarding the laws and customs of war.
Pakistan in our view today is fighting groups which can be described as insurgents, terrorists and/ or militants mainly of an internal nature which the State's security forces are ably dealing with.
74. In our view, the phrase "War on Terror" was coined after Osama Bin Laden and Al Qaeda attacked the World Trade Centre (WTC) in the USA on September 11 2001 by flying commercial jet airliners into such buildings which lead to the collapse of the WTC and the loss of around 3,000 precious lives. This resulted in a US lead coalition through exercising its right of self defense under International law retaliating against the Taliban regime in Afghanistan who refused to hand over Osama Bin Laden and other Al Qaeda members who the USA held responsible for the attack on the WTC and who were taking refuge within their territory and whom the State of Afghanistan refused to surrender . This so called "War on Terror" has been continuing for the last 19 years and thus if the petitioner was to fall within this so called "War on Terror" he may never be released from jail despite having been acquitted of the of fenses including terrorism for which he was originally charged some 14 years ago.
75. It then begs the question whether the conflicts in Iraq, Syria, Yemen, Libya , Somalia or sporadic terrorists attacks in France, the UK, Turkey , Nigeria etc all fall within the ambit of the "War on Terror" as in this day and age usually some kind of unconventional militancy/ terrorism is taking place in some part of the .World whidh involves some kind of terrorist element which if deemed to be a part of the so-called "War on Terror" may lead to a so called never ending war with so-called enemy aliens being left in black holes without any kind of legal relief without trial indefinitely which we consider would not have been the intention of the framers of our Constitutions in 1956, 1962 and 1973 through the insertion of Article 10(9). This is more so since our current form, of Parliamentary democracy under the 1973 Constitution attaches great weight to the freedom of the individual, due process of law, enforcement of fundamental rights and the rule of law which are the hall marks of any civilized society . We are also not convinced that such a harsh interpretation of Article 10(9) which gave no legal relief to an aggrieved party would sit well in a Constitution which is secular in nature but blended with Islamic principles.
76. Now a days the manner of warfare may have changed but back in 1956 when our first Constitution was framed the only reference to "enemy alien" which the framers of our Constitution would have had reference to, as mentioned above, was how "enemy aliens " were defined and treated by the British during World War Two and thus in our view when the term, "enemy alien" was included in the 1956 Constitution it was the intention of the framers of that Constitution that the term "enemy alien" was to mean the same as it was interpreted and applied by the British during World War Two and such meaning of "enemy alien" has continued into the 1962 and 1973 Constitutions and today where the term remains unchanged in Article 10(9). Even when the far reaching 18th Constitutional amendment, as mentioned earlier , was promulgated in 2010 and the so called "War on Terror" had been raging for almost 9 years Parliament felt no need to change the wording of Article 10(9) of the Constitution which it could have done had it so intended keeping in view the change in the nature of war fare since 1945 which the world was now dealing with in 2010 in the so called "War on Terror" and thus the original intention of the framers of the Constitution in 1956 as to the meaning of Article 10(9) remains in tact today as interpreted by us earlier in this order .
77. Thus, we are of the considered view that the petitioner is not an "enemy alien" as contemplated under Article 10(9) of the Constitution and as such Article 10(9) is not applicable to the petitioner .
78. In our view a person might be considered as an "enemy alien" as per our interpretation of its meaning if he was a non Pakistani citizen living in Pakistan when Pakistan was in a declared war with another State and that person was from that other State which Pakistan was at war with and could be considered as a spy or a saboteur who was assisting the enemy State in its conflict against Pakistan. For example, such a situation may have arisen if during the 1965 and 1973 wars with India if an Indian national was residing in Pakistan and assisting the Indian forces against the State of Pakistan who India was at war with but even then in our view the proper legal approach would most likely be to intern that person especially if he was a civilian against whom there was no cogent evidence of collaborating with the enemy or try him as a spy as the case may be.
79. We are fortified by our findings by The Actions (in aid of Civil Power) Regulation 2011 (the Regulations) and Rules made there under .
80. The Regulations were issued during the height of the so-called war on terror and even when the territorial integrity of Pakistan was under threat by terrorists/militants. Its Preamble reads as under; "to provide for Action in aid of civil power in the Federally Administered T ribal Area.
WHEREAS there exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants and foreign funded elements, who intend to assert unlawful control over the territories of Pakistan and to curb this threat and menace Armed forces have been requisitioned to carry out actions in aid of Civil Power .
AND WHEREAS continuous stationing of Armed Forces in territories, that have been secured from miscreants in the provincially Administrative Tribal Areas, is necessary and it is, therefore, imperative that a proper authorization be given to the Armed Forces to take certain measures for incapacitating the miscreants by interning them during continuation of the actions in aid of civil power and it is also necessary to ensure that Armed Forces carryout the said operation in accordance with law; AND WHEREAS the miscreants are no longer loyal and obedient to the state and Constitution of the Islamic Republic of Pakistan; AND WHEREAS to address this situation, the federal Government have directed Armed Forces to act in aid of Civil power to counter this threat to the solidarity and integrity of Islam ic Republic of Pakistan while being subject to the law provided hereinafter; NOW , THEREFORE, in exercise of powers conferred by 'clause (4) of Article 247 of the Constitution of Islamic Republic of Pakistan, the President is pleased to make the following regulations, namely:-
1. Short title, application and commenc ement:- (1) This Regulation may be called the actions (in Aid of Civil Power) Regulation, 201 1.
2. It shall be applicable to the Federally Administrative T ribal Areas of Pakistan.
3. It shall come into force at once and shall be deemed to have taken ef fect from the 1st February 2008.
81. Significantly the Regulations and the Rules made there under do not use the words "enemy aliens" but use the words "miscreants" for those who fall under the ambit of the Regulations and the Rules made there under .
Significantly , this law also covered persons, as per Preamble, who were described as; "miscreants who were no longer loyal and obedient to the state and Constitution of the Islamic Republic of Pakistan". Thus, even in these Regula tions a Pakistani national who had lost his allegiance to Pakistan was not regarded as an enemy alien but as a "miscreant" which again fortifies our view that it is only a non National who can be termed as an "enemy alien" and his allegiance to the State is not relevant in this respect otherwise in the Regulations he would have been terms as an "enemy alien" and hit by Article 10(9) of the Constitution."
82. At Section 2(1) of the Regulations "Miscreants" are defined as under; "miscreants" means any person who or may not be a citizen of Pakistan and who is intending to commit or has committed any offence under this Regula tion and includes a terrorist, a foreigner , a non state actor or a group of such persons by what so ever names called;
83. The non use of the words "enemy alien" and "miscreants" instead in our view was because the legislature in its wisdom intended to include Pakistani Nationals in this piece of legislature as well as non-Nationals which would not be in consonance with the definition of "enemy alien" who had to be non Pakistani citizens.
Perhaps the rationale behind this definition was that the miscreants who were carrying out a large scale insurgency and terrorist activities mainly limited to FATA as per the Regulations included Pakistani nationals who had to be brought within the net of the Regulations.
84. Again significantly , this piece of legislation also provided for internment centre's for'those miscreants who were captured with a right of review of their detention or who else might be sent up for trial and proceeded with in accordance with the law and thus even today there are no legal black holes in Pakistan whereby even suspected terrorists or militants are provided due process of law as guaranteed under Article 10(A) of the Constitution.
85. We are further fortified by our findings in respect of dip definition of "enemy alien" as set out in Article 10(9) of the Constitution by the now lapsed Protection of Pakistan Act 2014 (Act, X of 2014) the Preamble of which reads as under; "An Act to provide for the protection against waging of war or insurrection against Pakistan and the prevention of Acts threatening the security of Pakistan and for speedy trial of offenses falling in the schedule and the matters connected therewith or incidental thereto "(bold added)
86. At Section 2 of the Act in the definition section it defined at (d) "enemy alien" as under;
(d) "enemy alien" means a militant:--
(a) whose identity is unascertainable as a Pakistani, in the locality where he has been arrested or in the locality where he claims to be residing, whether by documentary or oral evidence; or
(b) who has been deprived of his citizenship, under the Pakistan Citizenship Act, 1951 (II of 1951), acquired by naturalization;
87. Thus the precondition for a person to be considered an "enemy alien" under this Act was that he was not a Pakistani National . Perhaps the rationale for excluding Pakistani nationals was the increasing attacks on Pakistan by non Pakistani nationals crossing over Pakistan's borders and carrying out attacks in Pakistan and then either retreating back to the sanctuary of their own country or staying in Pakistan to carry out further terrorist activities.
88. At Section 2 (f) of the Act militant was defined as under; "militant" means any person who:
(a) wages war or insurrection against Pakistan, or
(b) raises arms against Pakistan, its citizens, the armed forces or civil armed forces; or
(c) takes up, advocates or encourages or aids or abets the raising of arms or waging of war or a violent struggle against Pakistan; Or
(d) threatens or acts or attempts to act in a manner prejudicial to the security , integrity or defence of Pakistan; or
(e) commits or threatens to commit any schedule of fence; and includes:
(i) a person who commits any act outside the territory of Pakistan for which he has used the soil of Pakistan for preparing to commit such act that constitutes scheduled offence under this Act and the laws of the State where such of fence has been committed, including an act of aiding or abetting such of fence; Or
(ii) any person against whom there are reasonable grounds that he acts under the directions or in concert or conspiracy with or ' in furtherance of the designs of an enemy alien;
89. This Act which was considered by Parliament long after the so called "War on Terror" had started and would have been discussed and debated from all angles yet it uses the definition of "enemy alien " as found by us which would exclude the petitioner from the definition under Article 10(9) as the petitioner is a Pakistani national.
Parliament in its wisdom would have been well aware of the changed nature of war fare since World Wars One and Two where the enemy was usually easily identifiable through the use of different uniforms and emblems to today where often the fighters are unidentifiable as belonging to any particular or cohesive group and wear no distinguishing uniforms or emblems but deliberately and intentionally adopted the traditionally used and British definition of "alien enemy" as being non Pakistani nationals.
90. To us this is the clearest indication of how Parliament intended the words "enemy alien" to be interpreted as used in Article 10(9) of the Constitution . This Act as with the World War Two cases also established detention/interment centres for those who fell into the category of enemy alien and did not create legal black holes.
91. In our view Pakistan is passing through challenging times but we are not at war but rather we are having to deal with the scourge of terrorism and militancy like many other countries and we have passed appropriate laws to deal with such miscreants.
92. In this so called "War on Terror" it is always a careful and fine balance between ensuring the security of the State and at the same time ensuring civil liberties and rights of the citizens of the State which are guaranteed and protected by the Constitution and it is the role/ obligation of the Judiciary to jealo usly safe guard its citizens from executive abuse or over reach of power in such times.
93. Each State has responded to this so called "War on Terror" in its own way depending upon its own particular circumstances, needs and environment. Some States through extremely harsh preventive detention laws which have lead to persons being detained for years on end at prisons like Guantanamo Bay without trial and the US Patriot Act 2001, some through less harsh laws, for example we have resorted to the use of internment centre's where the worst instances of terrorism and militancy has taken place which still ensure the due process rights of the internee to a large extent and in recent times Parliament in its wisdom has abandoned under the Constitution by not renewing the same the concept of trial by military courts even for the most hardened jet black terrorist or militant to whom even minimum due processes standards were observed, whilst in the UK currently under the Protection of Freedoms Apt, 2012 the maximum pre charge detention period allowed for suspected terrorists is 12 days after which the suspected terrorist must be released or charged. Ultimately , however it is for each country through its own legislature based on its own circumstances, needs and its own prevailing environment to promulgate such laws as it considers appropriate. As far the struggle between striking the correct balance between security and civil liberties the proponents of each respective side will continue to fight for the supremacy of its own ideal over the other .
94. This struggle to find the right balance was well set out in a paper by David Cole (Heinonline-54 Stan.L.Rev .953 2001-2002) wherein at the start of the so called "War on Terror" he wrote in part as under concerning the US situation; "INTRODUCTION "On January 24, 2020, the United States military transported John Walker Lindh, a young American raised in Marin County , California, and captured with the Taliban on the battlefields of Afghanistan, to Alexandria, Virginia, where he was to be tried in a civilian criminal court for conspiring to kill Americans. White House spokesman An Fleischer announced that "the great strength of America is he will now have his day in court". At the same time, the military was holding 158 foreign-born Taliban and Al Qaeda prisoners at a military base in Guantanamo Bay, Cuba, in 8- foot-by-8-foot chain-link cages. A widely circulated press photo depicted the priso ners bound and shackled, with bags covering their heads and eyes, kneeling on the ground before U.S. soldiers. President George W. Bush announced that he had categorically determined that the Guantanamo detai nees were not entitled to the protections accorded prisoners of war under the Geneva Conventions, and Secreta ry of Defense Donald Rumsfeld dismissed concerns about their treatment with the assertion that it was better than the treatment the Taliban and Al Qaeda accorded their prisoners. Two months earlier , the President had issued a military order providing that Al Qaeda members and other noncitizens could be tried by military tribunals, in which the military would act as prosecutor , judge, jury , and executioner , without any appeal to a civilian court.
The difference between the treatment afforded John Walker Lindh and his fellow Taliban and Al Qaeda prisoners held on Guantanamo rested on the fact that Lindh was, as the press nicknamed him, "the American Taliban ." When the Attorney General announced the charges against Lindh, a reporter asked why Lindh was being tried in an ordinary criminal court rather than before a military tribunal. The Attorney General explained that because Lindh was a United States citizen, he was not subject to the military tribunals creat ed by President Bush's order .
As a purely legal matter , the president could have made U.S. citizens subject to military commissions; citizens have been tried in military tribunals before, and the Supreme Court expressly upheld such treatment as recently as World W ar II. But the president chose to limit his order to noncitizens.
That choice is emblematic of how we have responded to the terrorist attacks of September , 11, 2001. While there has been much talk about the need to sacrifice liberty for a greater sense of security , in practice we have selectively sacrificed noncitizens ' liberties while retaining basic protections for citizens. It is often said that civil liberties are the first casualty of war. It would be more accurate to say that noncitizens' liberties are the first to go. The current war on terrorism is no exception.
In the wake of September 11, we plainly need to rethink the balance between liberty and security . The attacks, which killed more than 3,000 people and did immeasurable damage to the human spirit, succeeded beyond our worst nightmares and their perpetrators' wildest dreams in wreaking destruction and spreading fear throughout the nation. We all feel a profound and deeply unfamiliar sense of vulnerability in their wake and have a correspondingly urgent need for security and reassurance. The anthrax scare that followed underscored the gravity of the threats we face, vividly demonstrating that scientific and technological-- advances have made instruments of mass destruction far too widely accessible. And as Attorney General John Ashcroft's statement quoted as an epigraph to this article illustrates, many argue that the demands of waging war-here, a war without an articulable endpoint-require that civil liberties not stand in the way of victory .
There is undoubtedly a balance to be struck between liberty and security , but there are also several reasons to be cautious about too readily sacrificing liberty in the name of security . First , as a historical matter , we have often overreacted in times of crisis. In World War I, we imprisoned people for years at a time merely for speaking out against the war effort. In World War II, we interned more than 110,000 persons solely because of their Japanese ancestry . And during the Cold War, thousands of innocent persons lost their jobs, were subjected to congressional investigations , or were incarcerated for their mere association with the Communist Party . In hindsight, these responses are generally viewed as shameful excesses; but in their day, they were considered reasonable and necessary .
Second , there is reason to think that as a genera l matter in times of crisis, we will overestimate our security needs and discount the value of liberty . Liberty is almost by definition abstract; it is measu red by the absence of control or restraint. Fear, by contrast, is immediate and palpable; it takes physical form as stress, anxiety , depression, a pit in the stomach, a bad taste in the mouth . It is easy to take liberty for granted, and to presume that government powers to intrude on liberty are not likely to be directed at one's own liberty . Fear affects us all, especially after an attack like that of September 1 1.
Third, liberty and security are not necessarily mutually exclusive values in a zero-sum game. Liberty often plays a critical role in maintaining security . One of the justifications for guaranteeing political freedoms is that a free people are less likely to be driven to extreme violence. A political process that treats people with equal dignity and allows dissidents to voice their views and organize to change the rules through political means is likely to be more stable in the long run. Recent experience in England and Israel has shown that cracking down on civil liberties does not necessarily reduce violence, and max, simply inspire more violence. As Justice Brandeis wrote, the Framers knew "that fear breeds repression; that repression breeds hate; [and] that hate menaces stable government."
Understanding both the importance of liberty and the temptation to restric t it that government authority and democratic majorities would face in times of crisis, Framers sought to protect our basic liberties from the momentary passions of the majority by inscribing them in the Constitution. But with few exceptions, constitutional rights are not absolute; a balance must be struck. As Justice Goldberg famously put it, "[the Constitution] is not a suicide pact." "
Thus, while the tension between liberty and security should not be overstated, it cannot be denied. We love liberty and security , but recognize that sometimes we must limit one to enjoy the other . When a democratic society strikes that balance in ways that impose the costs and benefits uniformly on all, one might be relatively confident that the political process will ultimately achieve a proper balance. But all too often we seek to avoid the difficult tradeoffs by striking an illegitimate balance, sacrificing the liberties of a minority group in order to further the majority's security interests. In the wake of September 11, citizens and their elected representatives have repeatedly chosen to sacrifice the liberties of noncitizens in furtherance of the citizenry's purported security . Because noncitizens have no vote, and thus no direct voice in the democratic process, they are a partic ularly vulnerable minority: And in the heat of the nationalistic and nationalist fervor engendered by war, noncitizens' interests are even less likely to weigh in the balance ".
(bold added)
95. Thus, even by 'US standards, now a days, it seems that a US citizen would not be considered as an "enemy alien" to be interned as opposed to being tried in an ordinary court of law .
96. Regarding this balance between civil liberties and preventive detention in the UK it was noted in online source Law Library of Congress on "Pre Charge detention for terrorist suspects; United Kingdom" that; "Reasons for the Extension of Pre-Charge Detention The extension of pre-charge detention, as noted above, is not a new issue and has presented itself with some regularly over the past several years to controversy each time legislation has been introduced . The struggle the government faces of how to balance protecting its citizens from the risk of a terrorist attack without undermining the basic human rights of individuals and their right to liberty , while acting within the limits of the law can be demonstrated by the fact that pre-charge detention has reportedly been "debated more than any other legal procedural issue in recent years." and "Concluding Remarks The Joint Committee on Human Rights has noted that "whilst anti-terrorist legislation is not new, each incremental installment, generated by concerns about public safety , must be considered not only on its merits but also in relation to the totality of such legislation. "The large volume of anti-terrorism legislation in the UK appears to have caused much controversy about the pre-charge detention provisions in the context of its cumulative effect.
Additionally , much controversy exists regarding the potential injustice that an individual could face by being detained for up to forty two days without being charged with a crime to only later be determined to not pose a threat. The government's concerns regarding the challenges that it faces and the consequences of not having powers to enable police to effectively tackle the terrorist threat are unenviable and not open to an easy solution. The final resolution of the controversy surrounding the issue of pre-charge detention is dependent upon the social and political climate to determine whether the chosen measures are proportionate to the challenge faced.
The reception that the provisions in the bill relating to pre-charge detention have met in the House of Lords indicates that the provisions would likely not be enacted". As noted below the extension of pre-charge detention from 28 to 42 days was rejected by the British Parliament and now the maximum detention period is 12 days where after the detained person must be charged with an offense or released. ..................
97. As noted above in recent times in the UK the pre-charge detention for terrorist suspects has been whittled down from 28 days to 12 days and an attempt to have the preventive detention period increased from 28 days to 42 days (prior to it being reduced to 12 days) was defeated by Parliament despite the recent terrorist attack at a musical concert in Manchester which killed and injured many youngsters and other such terrorist attacks in the UK.
98. In conclusion we find that the petition er being a Pakistani national living in Pakistan whilst Pakistan is not in a declared war does not fall within the definition of "enemy alien" as used in Article 10(9) of the Constitution and whose detention under Article 10 (9) was without lawful authority and in violation of the Constitution.
99. W e have already in this order struck down the Third PDO for the reasons mentioned earlier in this order .
100. Suffice it to say that such mala fide conduct on the part of the Government of Sindh is highly deprecated. The petitioner was convicted by the trial court for very serious offenses including terrorism and was accordingly handed down the death penalty however after serving over 14 years in jail without remission the petitioner was acquitted of all charges. The State appealed the acquittal of the petitioner as was its legal right which is still pending before the Supreme Court for determination.
101. This is how our criminal justice system works and enables the public to have faith in the same. Issuing continuous and successive PDO's on unjustified grounds just to key a person in jail despite his acquittal by the courts only serves to undermine and lessen confidence in the criminal justice system in the eyes of the public and lead to the perception that it is not based on the principles of equality and fair play and that the rule of law which this Country so cherishes is being compromised by the executive authorities.
102. Thus, not only did the Government of Sindh violate the Constitutional rights of the petitioner under Article 10 of the Constitution based on the particular facts and circumstances of the case the Government of Sindh also violated Articles 4, 9, 10(A), 14, 15 and 25 of the Constitution by issuing PDO's which lacked lega' justification based on the material which was placed before the competent authority (as the petitioner has been found by us not to be an enemy alien) as such the Third PDO which is the only PDO which remains in the field is for the avoidance of doubt for the reasons mentioned earlier in this order hereby struck down as being unlawfu l and of no legal effect however the Notification under section 11 EE ATA placing the petitioner's name on the IV Schedule of the ATA is upheld so as to enable the State as envisaged by AIG Legal to monitor the activities of the petitioner once he is released from jail.
103. In particular , especially during challenging times the courts must ensure the Constitutional guarantees/protections provided to the citizens of this country through the Constitution and protect them from any misuse or abuse of executive authority especially when the liberty of the individual is at stake which is one of the most important fundamental rights guaranteed by the Constitution. Without the jealous protection of the liberty of the citizen and other fundamental rights by the courts we are no where both as a State and citizen of that State and the road to anarchy and tyranny will not be far away .
Conclusion .
104. The petition is allowed. The First two PDO's have expired and as such are no longer in the field having ceased to have effect on their expiry . The only PDO which is currently operating is the third. PDO referred to in this Order which the petitioner is subject to which is struck down as being in violation of Article s 4, 9, 10, 10(A), 14, 15 and 25 of the Constitution as being illegal and issued without lawful authority .
105. The petitioner is found not to be an "enemy alien" so as to fall within the ambit of Article 10(9) of the Constitution and his detention under this sub-Article of the Constitution is found to be illegal and without lawful authority .
106. The Notification under section 1 lEE ATA referred to in this Order is upheld and prior to his release from jail the petitioner shall provide two sureties of 25 lacs each and PR bond in the like amount to the satisfaction of the Nazir of this Court to ensure the petitioners compliance with the section llEE ATA Notification as well as providing his residential address, mobile telephone numbers (if more than one) to the Home Secretary Government of Sindh who shall inform the petitioner of which PS he is to report to on a weekly basis and any other conditions which the Home Secretary may legally impose unde r section 11 EE ATA in terms of monitoring the petitioner including without limitation through mobile phone or electronic tag for which the petitioner shall provide his full. co-operation.
107. After compliance with the conditiona lity's contained in this order it is ordered that the petitioner be released forthwith from jail unless wanted in any other custody case/crime or any stay order passed by the Supreme Court is currently in operation preventing his release.
108. It is also directed that the petitioner not be detained under any further preventive detention order by either the Federal Government or any Provincial Government or any law enforcement agency or any other body without the permission of this court. A copy of this order shall be sent by the office by fax immediately to Secretary Ministry of Interior Government of Pakistan, Secretary Home Department and Chief Secre tary Government of Sindh and Superintendent Central Prison Karachi and IGP Prisons for compliance.
109. The petition stands disposed of in the above terms.