THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.D-6283 of 2020

PRESENT:

                        Justice Naimatullah Phulpoto

                        Justice Zulfiqar Ali Sangi

 

1.      Muhammad Zahid S/o Jana Khan

2.      Asmatullah son of Rasool Muhammad ………………………………Petitioners

 

versus

Province of Sindh & Others       …………………………………………...Respondents

Petitioners:                                        Through Mr. Muhammad Farooq, advocate

For Respondent No. 1:                    Mr. Hakim Ali Shaikh, Addl: A.G. Sindh & Shariq Mubashir, AAG a/w Mr. Aijaz Ali Bhatti, S.O. (Judicial-II), Home Deptt:, Govt. of Sindh

 

Mr. Ali Haider Saleem, Addl: P. G. Sindh

 

For Respondent No. 2-6:                 Inspector Umer Farooq of CTD Sindh Karachi

 

Date of Hearing:                               17.05.2024

 

O R D E R

 

NAIMATULLAH PHULPOTO, J. Through this constitution petition, petitioners Muhammad Zahid son of Jana Khan and Asmatullah son of Rasool Muhammad have called in question Notification No.SO(JUDL-II)HD/8-1/2017(MF) dated 15.09.2017, issued by the Home Department, Government of Sindh, whereby the names of petitioners were placed in Fourth Schedule of Anti-Terrorism Act 1997 (“the Act”) pursuant to allegations of affiliation with a proscribed organization.[[1]]           

2.         Brief facts, leading to the filing of instant petition, are that petitioner were arrested in FIR No.399/2016, registered at P.S. SITE “A”, Karachi for offences under Sections 353, 324, 34, read with Section 7 of the Anti-Terrorism Act, 1997, FIR No.402/2016 for offence under Section 4/5 of the Explosive Substances Act, 1908, whereas petitioner No.1 was also arrested FIR No.400/2016 under Section 23(1)(a) of the Sindh Arms Act, 2013. In all the aforesaid cases, the petitioners have been acquitted.

 

3.                  Mr. Farooq Ahmed, learned advocate for the petitioners contended that the petitioners were involved in three criminal cases in which they have been acquitted in the year 2022, despite that their names are still placed on Fourth Schedule of the Anti-Terrorism Act, 1997.

4.                  Inspector Muhammad Umar of CTD Sindh, Karachi submitted that since last three years, there is no involvement of the petitioners in terrorist activities. Learned Additional Advocate General Sindh as well as Additional Prosecutor General Sindh have also submitted that there is nothing fresh to show that the petitioners are acting on behalf of a proscribed organization.

 

5.                  After consideration of arguments advanced by counsel for all parties and the review of the record, we identified that Section 11-EE of the Act, 1997 empowers the Federal Government to unilaterally include the name of any person within the Fourth Schedule, with such orders being published in the official Government Gazette. These proceedings are conducted ex parte, though they necessitate the presence of ‘reasonable grounds’ for such inclusion. This burden rests upon the Police seeking the placement, and such grounds must lead them to believe that the targeted individual falls under one of the following categories: (a) involvement in terrorist activities, (b) membership as an activist, office bearer, or associate of an organization under observation, or (c) suspected association with or affiliation to an organization or group engaged in terrorism, sectarianism, or acting on behalf of a proscribed organization.

6.                Where the requirement of 'reasonable grounds' precedes the issuance of any adverse order or the undertaking of any consequential action, the power to do so ceases to be absolute. A fundamental principle of constitutional and administrative law dictates that when decision-making authority is vested in a statutory functionary based on their subjective satisfaction, there exists an implicit obligation to not “[...]act in an arbitrary, fanciful and whimsical manner -- they should be judicious, fair and just in their decisions.”[[2]] A bare perusal of the order passed by the Home Department shows the use of words like apparently which directly suggest suspicion rather than definite. Similarly, the order alleges that the petitioners previously were involved in criminal cases, in which, admittedly the petitioners have been acquitted. The lack of reasonable grounds is evident and what has been made the basis of the order for placement of the names of the petitioners on Fourth Schedule can at best be described as reasonable suspicion and not reasonable grounds. The concept of reasonable grounds implies the existence of circumstances which would convince a reasonable and prudent individual. It transcends mere suspicion.[[3]] While not requiring direct evidence, even the most compelling suspicion remains insufficient as reasonable grounds without a clear basis in plausibility.

7.                The Anti-Terrorism Act, 1997 provides that when a person is listed in Fourth Schedule, the grounds shall be communicated to the proscribed person within three days of passing of the order of proscription but it has not been done in the case of the petitioners. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees individuals rights to be treated in accordance with the law, and to enjoy its protection.[[4]] This right extends to a bar on any action demonstrably detrimental to life, liberty, bodily integrity, reputation, or property. Article 4 of the Constitution is reproduced as under:

“4.       (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.

            (2) In particular—

(a) no action detrimental to the life, liberty, body, reputation or 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”

8.                For the above stated reasons, the order passed by the Home Department, Government of Sindh is not sustainable under the law as it lacks the minimum threshold for satisfying the reasonable grounds’ requirement. Resultantly, impugned Notification No.SO(JUDL-II)HD/8-1/2017(MF) dated 15.09.2017 is set aside.

9.                The caption petition was allowed by this Court vide short order dated 17th May, 2024, and these are reasons for our short order.

 

       J U D G E

 

            J U D G E

Gulsher/PS


[1] Notification No.SO(JUDL-II)HD/8-1/2017(MF) dated 15.09.2017

[2] Abdul Wahab vs. Secretary, Government of Balochistan and another 2009 SCMR 1354

[3] Chaudhry Shujat Hussain vs. The State (1995 SCMR 1249)

[4] 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.