ABDUL HAMEED BALOCH, J. Through this common judgment we intend to dispose of the Constitutional Petitions Nos. 1247 and 1276 of 2021, as both the petitions are arising out of the same subject-matter, whereby the petitioners prayed as under: It is, therefore. respectfully prayed the impugned act of respondents of keeping the petitioners in the watch list, imposing restrictions against them as well as blocking freezing the bank accounts of petitioners and further restriction them to travel freely within the country and abroad to do business to be illegal. as such, not maintainable, consequently the respondents may be directed to remove all the restrictions from the petitioners from the petitioners, unblock/un-freeze their bank accounts and allow the petitioners to move/travel freely within the country or abroad and to continue his business activities and studies with any other relief and cost of the proceedings throughout in the interest of justice. "
2. The petitioners in both the petitions challenged blocking/freezing of their bank accounts and restrictions over their travelling freely.
3. The respondent No.1 filed para-wise comments and stated that defreezing the bank accounts of the petitioners fall within purview of the provincial government.
4. Heard. Record perused. As per petitioners due to some misunderstanding their names were entered in the watch list of the United Nation with allegation that the petitioners have affiliation with Taliban without any evidence and on the basis of same allegation the respondent No. 1 imposed sanction and blocked/freezed all accounts of petitioners, meaning thereby the petitioners have been restrained to carry out any business activity in a lawful manner.
5. The record depict that the brother of petitioner No. 1 in C.P. No.1247 of 2021 was nominated in case FIR No. 52 of 2019, P.S. Airport, Quetta, under Sections 11-F 11-J(a)(b) read with section 11-N of ATA, 1997 and on conclusion of trial, he was acquitted by the court of Competent jurisdiction.
6. The record transpires that the respondents have not placed any material which connect the petitioners with the proscribed organization. There is no evidence on record to show that the petitioners ever had been involved in unlawful activities. No record of the petitioners have been produced to show that they were convicted and sentenced by court of competent jurisdiction. For placing the name of a citizen, the respondents are under legal obligation to collect concrete material in order to establish that the petitioners are activist, associate, financer of a proscribed organization. In the absence of any tangible material, inclusion the name of petitioners in the watch list cannot be terms as legal. It would be relevant to reproduced section 11-EE of ATA, 1997 as under: [11EE. 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 associate of an organization kept under observation under section 11D or proscribed under section 11B; and (c) in any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be Involved in terrorism or sectarianism or acting on behalf of or at the direction of any person or organization proscribed under this Act Explanation. 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."
7. Under subsection (i) of Section 11-EE phrase "if there are reasonable ground to believe" is significant. The Act does not define this expression but in section 26 of the P.P.C. the reason to believe defined as under:
26. "Reason to believe". A person is said to have "reason to believe" a thing if he has sufficient cause to believe that thing but not otherwise.
8. The Indian Supreme Court dilated upon the expression "reasons to believe" in case of Joti Parshad v. The State of Haryana (AIR 1993 SC 1167) observed as under:
4. Under the. Indian penal law, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe". We are now concerned with the expressions "knowledge" and "reason to believe". "Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another facet of the state of mind. "Reason to believe" is not the same thing as "suspicion" or 'doubt" and mere seeing also cannot be equated to believing. Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26 P.P.C. explains the meaning of the words "reason to believe" thus:
26. "Reason to believe"---A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise.
In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to be deduced from various circumstances in the case. In the context of the circumstances obtaining in the instant case namely that the appellant admittedly was a licensed stamp vendor and he was found in possession of counterfeit stamps, the explanation of the accused also becomes relevant and important in assessing and appreciating whether he had such knowledge or reason to believe that the stamps were counterfeited. Admittedly he used to purchase stamps from the treasury and all such transactions are duly recorded in the official registers. There is absolutely no material whatsoever to show that the counterfeit stamps were in fact purchased by him from the treasury. A bare allegation by way of an explanation by the accused-appellant that he purchased all the stamps including the counterfeit ones from the treasury appears on the face of it to be false, as he has neither produced registers maintained by him nor did he make even an effort to summon the treasury records. There is no material whatsoever even to probablise such a plea. In these circumstances the only inference that can be drawn is that he had "knowledge" and "reason to believe" that the stamps which he had in his possession and which he was selling or offering to sell, were counterfeit ones. These ingredients of the two provisions of law are fully established.
Thereby the convictions are correct. The offence also is a serious one and the sentence awarded is not excessive. The appeal is therefore dismissed.
9. In Choudhry Shujahat Hussain's Case (1999 SCMR 1149) the Hon'ble apex Court held that "The term "reason to believe" can be classified at a higher padestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reason to believe".
10. Section 11-EE of the Act prescribes the "reasonable ground to believe" standard to imposed sanction. The powers under the above referred section are exercisable subject to condition that the authority must take into account all the relevant facts and circumstances to form opinion. Such opinion must be based on information received from any credible source. It must show that it is authentic not just suspicion. There must be evidence to establish reasonableness. The ground should be communicated to the person within three days. The authority should place the entire material before the court. In this regard reliance is placed on the case of Agha Shahid Hassan Bugti v. Federation of Pakistan PLD 2007 Quetta 25, whereby it has been observed as under:-- "It is evident from the above reproduced notification that it was issued by the Ministry as they have reasons to believe that the petitioner and other individuals mentioned in the list were affiliated/associated with the proscribed organization. Probably the words "reasons to believe" have been borrowed from section 11-B which provides that an organization is proscribed if the Federal Government, having reasons to believe that an organization is concerned is terrorism, by order, lists it in the First Schedule. "Belief" being a conviction of the mind arising not from the actual reason or knowledge but by way of inference of evidence received or information derived from others. It falls short of an "absolute" certainty (PLD 1952 FC 19 referred), therefore; the term "reasons to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reasons to believe" as observed by the Hon'ble Apex Court in the judgment reported In 1995 SCMR 1249. Right to acquire, hold and dispose of property has been protected under Article 23 of the Constitution of Islamic Republic of Pakistan which could not be taken away or curtailed on, mere presumption. No material was placed before us or appended with the rejoinder to the petition from which it could be inferred that the petitioner was in any manner associated/affiliated with the proscribed organization. He is sitting member of Senate elected on the seat of a political party, otherwise; he would have been disqualified to be member of Senate being affiliated/associated with a proscribed organization. But so far no action has been taken against him under section 11-F Anti- Terrorism Act, 1997 which provides punishment for a person who belongs or professes to belong to a proscribed organization, therefore; it is hard to believe that he was associated/affiliated with the proscribed organization B.L.A., as such; the impugned notifications to the extent of petitioner are not sustainable in the eyes of law.
11. The Constitution of Islamic Republic of Pakistan guarantees that every citizen to be treated in accordance to law, no action detrimental to the life, liberty body, reputation and property of any person can be taken except in accordance with law. Article 4 of the Constitution being relevant is reproduced as under:
4. Right of individuals to be dealt with in accordance with law, etc.---(I) 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.
12. In Government of West Pakistan and another case (PLD 1969 SC 14) it was held 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 considerations is also nor action in accordance with law.
Action taken upon no ground at all or without proper application of then 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."
13. Article 9 of the Constitution has guaranteed the right of liberty, any restriction or invade such guarantee by the law is not permissible. Any action by the authority contrary is illegal, void ab initio.
The law does not allow to deprive the liberty of a citizen arbitrarily or his whim, capriciously.
Reliance is placed on the case of Muhammad Jameel Das (W. Gopal Das) v. Federation of Pakistan 1999 CLC 541, whereby it has been held as under: The right of a Pakistani citizen to be dealt with in accordance with law in respect of his life, liberty, body, reputation or property is guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This recognises the supremacy of law for providing the aforesaid guarantee to every citizen till he is disqualified in accordance with law. Since it is a Constitutional guarantee, therefore; any law, which restricts or invades such right should be strictly construed. The mere fact that a citizen is out of the country would not deprive him of his Fundamental Rights guaranteed to him under the supreme law of the land. Any action, contrary to the guarantee provided under Article (supra) can be challenged for appropriate relief Likewise Article 24 of the Constitution ensures that no person shall be compulsorily deprived of his property save in accordance with law. Although exceptions are provided under the Article to the aforesaid right, but those are to be construed strictly wherever an action is intended to deprive a citizen of his property. The protection of proprietary rights in a property is a fundamental right and cannot be allowed to be taken away easily at whims of the Government functionaries. Likewise every citizen of Pakistan has a right to be treated equally and to have equal protection of law under Article 25 of the Constitution."
14. Under Article 9 of the Constitution, no person shall be deprived of life or liberty save in accordance with law. The word life is not restricted to vegetative life, it carries with the right to leave with all fundamental rights as guaranteed in the Constitution, which means to guarantee the dignity of man. The word life is very significant as it covers all facet of human existence. In this regard reliance is placed on the case of Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh Karachi PLD 2007 Karachi 116, whereby it has been held as under: "3. Right to life guaranteed by the Constitution cannot be restricted to a right of bare breathing.
The penal laws of the country already provided adequate safeguard against manslaughter and other offences affecting human body. The Constitution envisages establishment of a welfare state according to the norms of the modern civilized society and, therefore, its provisions, specially the provisions about fundamental rights, cannot be interpreted in a pedantic way. The term "life" used in Article 9 is of very wide import and includes all those rights which are necessary for living a quality life befitting human dignity. It cannot be limited to mere vegetative or animal life.
15. Article 18 of the Constitution guaranteed the fundamental right of freedom of trade, business or profession envisage the right to do the lawful business, trade. The State functionaries are under legal obligation to act fairly and justly. The state functionaries while discharging official function should ensure that no one is denied the right to earn livelihood. The word "lawful" used in the Article qualifies the right of a citizen in relevant field.
In view of above, the Constitutional Petitions Nos. 1247 and 1276 of 2021 are allowed. The freezing/blocking of the accounts of the petitioners are declared illegal void ab initio. The petitioners cannot be prohibited from doing lawful business.