This appeal under section 11(EE) (3A) of Anti-Terrorism Act, 1997 is directed against order dated 25.08.2021 passed by respondent No.1 whereby name of the petitioner was placed in 4th Schedule and the order dated 18.10.2021 passed by respondent No.1 whereby the review application of the appellant was rejected.
2. Brief facts giving rise to the filing of this criminal appeal are that the appellant involved in case FIR No.319/2013, dated 23.08.2013, registered under sections 302, 324, 148, 149, 186, 188, P.P.C. read with sections 7/9 of ATA, 1997 at Police Station Saddar Bhakkar was arrested but later was declared innocent and his name was placed in column No.2 of the challan yet his name was placed in 4th Schedule for three years vide notification dated 14.04.2014. However, the appellant was acquitted on 29.04.2015 by the learned trial court and his name was deleted from the 4th Schedule. However, on 14.02.2018 his name was again placed in 4th Schedule and his CNIC and the bank account had also been blocked. His property frozen and his freedom of movement was curtailed for the last six years. Misery of the appellant did not come to an end when his name was again placed in 4th Schedule for the 3rd time on 25.08.2021. He challenged the said order through review application which remained pending and, therefore, he filed W.P. No.52418/2021 which was decided on 02.09.2021 directing the respondent to decide the review application. However, the review application was dismissed on 18.10.2021 on merits, hence two orders dated 25.08.2021 and 18.10.2021 are assailed through the instant appeal.
3. Learned counsel for the appellant contends that under section 11-EE(1) of ATA, 1997, the Federal Government may publish the name of the proscribed person in the 4th Schedule on ex-parte basis subject to availability of reasonable grounds which requirement was not fulfilled in the present case. He next argues that subsequent and repeated punishment on the same allegation has been disapproved by the Supreme Court. He -adds that extending this period for indefinite period was turned down in "Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore and 6 others" reported as (2013 PCr.LJ 312) and "Nayyar Abbas Jaffari v. Government of Khyber Pakhtunkhwa through Secretary Khyber Pakhtunkhwa Home and Tribal Affairs Department and 4 others" reported as (2019 PCr.LJ 941) that in the absence of connecting material and tangible reasons, inclusion of name of the appellant in 4th Schedule is not permissible under Article 4 of the Constitution and prays for setting aside the impugned orders.
4. In the report and parawise comments submitted by respondent No.1 it has specifically been stated that the appellant is an activist, therefore, placement of his name in 4th Schedule was recommended.
5. Arguments heard. File perused.
6. The main crux of the arguments advanced by the learned counsel for the appellant is repeated inclusion of name of the appellant in the 4th Schedule. According to him, there has to be a fresh tangible grounds of violation of the code of conduct/undertaking for inclusion of a person in the 4th Schedule particularly, after completion of a period of three years. We have specifically asked the learned Law Officer to assist us on this raised point but he insisted upon secret reports prepared in support of the order. According to him, the society has been secured from the terrorist activities through the orders by placing the names of the person in 4th Schedule. However, executive power given to respondent No.1 has to be checked and when it effects the free mobility of the persons, therefore, it must be ensured that it is not exercised arbitrarily. Obedience to the State and the applicable laws is undoubtedly a basic duty of every citizen of this country under Article 5 of the Constitution. Likewise, it is also responsibility of State to keep watch on the suspected persons for the purpose of monitoring their good conduct and if no adverse facts are brought to the knowledge of the authorities, they must not be haunted by previous conduct of such citizens.
Admittedly, during this previous seven years period the appellant has not been involved in any criminal activity and he had lead a life of a dutiful citizen, therefore, automatic inclusion of his name in 4th Schedule consecutively for 3rd time will not be protected under Article 4 of the Constitution. Placing the name of the appellant again and again in the 4th schedule of Anti- Terrorism Act, 1997 without any adequate ground is obviously not sustainable as already held by this Court. In Crl. Appeal No.1551 of 2022 titled "Muhammad Nadeem v. Government of Punjab, etc." the order of inclusion of a person in 4th Schedule was set aside and the said order is not set aside by the Supreme Court. It is appropriate to reproduce para-6 of the said judgment as under:- "6. This section has recently been interpreted by Division Bench of this court in case titled "Qari_ Muhammad Arif v. Secretary Home Department and others" reported as PLD 2021 Lahore 499, in which the existence of reasonable ground mentioned under section 11 EE of the ATA, 1997 have been discussed with reference to statutory safeguards. It was held as follows:- "i) An order of proscription can be made only if there are reason-able grounds to believe that person concerned falls within the ambit of section 11-EE(1) of the Act. ii) The competent authority must take into account all the relevant facts and circumstances to form an honest opinion whether an order of proscription is necessary. Such opinion may be formed on the basis of information received from any credible 'source, whether domestic or foreign, including governmental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and non-banking companies, and international institutions. iii) If the information on which the authority relies to form the opinion is oral, it must show that it is authentic and not just a rumor. iv) There must be evidence to establish reasonableness which stands on a higher pedestal than mere suspicion. v) The grounds of proscription should be relevant to the aims and objects of the Act and the provisions of subsection (1) of section 11-EE. An order made for extraneous considerations or in colourable exercise of power is not sustainable. vi) The order of proscription should not be vague. It must be perspicuous so that the person against whom it is made may file a review application provided by law. vii) The grounds of proscription should be communicated to the proscribed person within three days. viii) The court is competent to examine the vires of the order of proscription. The initial burden lies on the authority to show that it is legal. ix) The authority must place the entire material before the court on the basis of which it has passed the order of proscription. If it claims privilege in respect of any document, the court is the final arbiter."
In another judgment passed by the Division Bench of Peshawar High Court in case titled "Nayya r Abbas Jaffari v. Government of Khyber Pakhtunkhwa through Secretary Khyber Pakhtunkhwa Home and Tribal Affairs Department and 4 others" reported as (2019 PCr.LJ 941), it has been held that after the expiry, of statutory period of 03 years the name of the person could not be allowed to remain in the list of 4th Schedule for an indefinite period in which a reference was also given to the case of Ghazanfar Kazmi's case (PLD 2017 Peshawar 105) holding that the grounds provided under section 11EE must exist before passing the order. In case titled "Khawaja Mureed Hussain v.
Government of the Punjab, Home Department, Lahore and 6 others" reported as (2013 PCr.LJ 312), a Division Bench of this court has also held that placement of the name of the petitioner in 4th Schedule beyond 03 years period was violative of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and the petitioner (therein) was directed to be released. Relevant para 8 is reproduced as under:- "8. The expression "preventive detention" although not defined in the Constitution, however, is used in Sub-Article (4) of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 with an object to combat anti-social and subversive 'elements from endangering the public safely and security of the State as well as to ensure protection to the personal liberty of a citizen as enshrined in the said Article. Reliance is made upon Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (PLD 1966 Supreme Court 286)."
In case titled "Muhammad Yousaf Farooqi v. Government .of Punjab" reported as (2012 PCr.LJ 905) it was held that extension of the period was little over doing on the part of the Executive which proceeded to repeat the curtailment of liberty of citizen who was guaranteed the fundamental rights by the Constitution. In case titled "Abdul Rauf v. Chief Commissioner, Islamabad and 5 others" reported as (PLD 2006 Lahore 111), the material to form opinion that a person was acting in the manner prejudicial to the activity or security of Pakistan was not available, therefore, its name was taken out from the 4th Schedule. In case titled "Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others" reported as (PLD 2004 Lahore 370), it was even held that mere registration of FIR would not be a ground to place the name of its accused in 4th Schedule under ATA, 1997".
6. For the above stated reasons, this appeal is allowed and the impugned orders dated, 21.08.2021 and 18.10.2021 passed by respondent No.1 are set aside.