Mst. Aziza Naeem (Petitioner) VS Govt of Sindh & Ors (Respondent)

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IN THE HIGH COURT O F SINDH, K ARACHI

Present:

Mr, lustice Mohammail Kaim Khan Agha Mr. lustice Amiad Ali Sahito.

CONSTITUTION PETITON NO.3275 OF 2O2O

Petitioner: Mst. Aziza Naeem wife oI Mohammad Naeem through Mr.

Shaikh aved Mir, Advocate Ilespondents /State: The State through Mr Salman Talibuddin, Advocate General Sindh, Mr. Kashif Paracha, Addl. AttorneY General and Mr. Abrar Ali Khichi, Addl. Prosecutor General.

On Court Notice: Dr Usman Chachar, ACS, Home D artment.

Date of Hearing 01,.12.2020, 10.12.2020 and 1 1.1 2. 2020 Date of Announcement 2't.12.2020

ORDER

Mohammed Karim Khan Agha j. The petitioner has challenged three separate preventive detention orders which have been issued by the Covernment of Sindh for a period of three months each one after the other under various sections of law and in effect contended that such orders should be struck down as being illegal and issued without lawful authority on account of amongst other things malafides and the fact that the Government oi Sindh faited to satisfy itsetf of the need to issue these

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orders on an objective assessment 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 Jutlge, Anti-Terrorism Court No.ll Karachi in Special Cases No. 37 of 2005 arising out of Crime No.145l2005 u/ s.302/324/a27 /109/34 PPC 3/4 Explosive Substances Act 1908 r/w. Sechon 7 Anti Terrorism Acl "1997 (ATA) registered at 1,S Artillery Maidan Karachi After trial vide judgment dated 10'06'2014 the

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antl appellant Abdul Hameed Bugti son of Ali Murad Bugti was convicted sentencecl as under:-

a) For causing death to four persons Sabz AIi' .lftikha-r 1+'hmed' Jawed lqb*al and Noor Rehman, by bomb blast he was sentenced to death.

b) For causing injuries to 20 persons he is sentenced to Rigorous ' Imprison#ni for t0 (ten) years and payment of a fine of Rs.-SO,OOO7-lf ifty Thousand) to each iniured

c) For causing bomb blast punishable u/s -: 3f tfe. Explosive Substances-Act, 1908 to R,I for life and to forfeit his property to the Government u/s. 5-A of the Explosive Substances Act' c1) For causing damage to the buildings of Muslim Commercial Bank anrl PIDC House { s.7(d\ of Anti-Terrorism Act' to R.I. for 14 years.

All the sentences were to run concurrently' The sentence of death awarded to the accused was subiect to the confirmation by the Hon'ble High Court of Sindh, Karachi'

3.The oflenses 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 iudgment passed by learned Judge, AntlTerrorism Court No.II, Karachi the petitioner appealed the same before this court.

of ; 5. Tlris Court vide Judgment dated 02'04 2020 allowed the appeal the petitioner and set asitle the impugned judgment and ordered his acquittal/ release after he had served 14 years without remission'

6.Upon announcement of the Judgment referred to above the Government of Sindh immediately issued a Preventive detention order hereinafter re{erred as (PDO's) under S.3(1) oI the West Pakistan I\4aintenance of Public order ordinance 1960 dated 02.04.2020 for a period order of 3 months and on its exPiry issued a second preventive detention uncier S.11 EEE of the Anti Terrorism Act 1997 (ATA) dated 01"072020tot t

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a further Period of 3 months and thereafter issued another preventive cletention order under S.11 EEE of the ATA read with Article 10 of the making a Constitution datett 28.09.2020 for yet another period of 3 months total of 9 continuous months of Preventive detention' Learned counsel for the Petitioner has contended that all the

and they preventive detention orders as (PDO's) were based on malafide were issuecl for the sole PurPose of keeping the petitioner behind bars after his acquittal by this court despite already having served 14 years

acquittal behind bars without remission and in order to circumvent the judgment of this court, that with regard to the first PDO this was passed a period of on 10.04.2020 immediately after his acquittal by this court for 30 days anrl based as per the language of the order itself on material a gathered by the police in a letter dated 10 04 2020 and from no other

source e.g. intelligence agency and was under S 3(1) of the West Pakistan in effect Maintenance of Public Order Ordinance 1960 (MPO) which stated that the presence of the petitioner at any public place is likeiy to pose

glave threat to the public safety and breach of the peace and tranquility to satisfy and that the material gathered by the police was not sufficient the material that the Government of Sindh on an obiective assessment of this would be the case or of having any reasonable grounds to form such this an opinion when it issued its first PDO on the same day as receiving further information, That the malafide of the Govemment of Sindh was under proven by the fact that as they fearetl that a further detention order expiry the MPO might be struck down by this court a few days before its

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the petitioner was placerJ on the 4th Schedule of the ATA under S 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

in that he was affiliated with a terrorist organization and involved on terrorist acts despite there being no material to show that his addition as he the IV Schedule of the ATA on these grounds was justified especially hacl been in jail for the last 14 years. Therefore Prior to the expiry of his of first PDO in order to keep him continuously in lail the Government of the Sindh issued a Second PDO on 08.07.2020 this time under S'l1EEE Af'A as opposed to the MPO for a further three months period on the basis o( material again provided by the police and not any intelliSence

agency or other body that he will be able to move around /establish/re

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establish networks for the purpose of furthering any terrorist activity being affiliated in the past with such organizations as soon as he was that released for which once again the Government of Sindh was satisfied legally there existed apprehension of the above for which there was no justifietl material which coulci have satisfied the Government of Sindh before about this based on an objective assessment of the material placed powers it.; that even otherwise the wording of S.11EE ATA only gave such to the Federal Government and not the Provincial Government and as

such the second PDo was unlawful and without legal effect especially as

to a the Fetleral Government had no legal power to delegate such Power Provincial Government; that once again the rnala{ide of the Govemment day of Sindh was shown by it issuing the third PDO on 0610'2020 on the on which the Petitioner's secontl PDO was due to exPire so that the petitioner could be kept continuously in jail The third PDO was issued under S.11 EEE ATA read with Article 10(5) and 10(9) of the Constitution and accortling to learned counsel for the petitioner is due to expire on

05.01.2020. Learned counsel for the petitioner submitted that he had the second challenged his detention under the first PDO and also under was PDO under Article 10 (4) of the Constituhon but his representation 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 unrler both the MPO and S'11EEE of the ATA under which

the Government oi Sindh issued the successive PDO's there was not of enough material which could possibly have satisfied the Government Sintlh baserl on an objective assessment of the matedal before it in issuing by the three PDO's all of which have been issued on account of malafide the Covernment of Sindh and accordingly the three PDO's should be in struck down as being with out lawful authority He contended that which another case he had been shown the material against the Petitioner and the Government of Sindh had used to iustify the petitioners detention in his view this material showed that the Petitioner had no contact with

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the BLA and that he was not even a proscribed person under the case which Scheclule of the ATA in06.07.2007 when he was arrested in the learl to his acquittal after 14 years antl yet almost immediately after his

S'11 EE ATA

acquittal he was placerl on the IV schedule of the ATA under as a malafide Pretext to enable him to be detailed for a further period

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S'11 EE ATA

under S.11 EEE ATA within one day of his placement under within one despite thee being no new material iustifying such placement According to day coming to the attention of the Government of Sindh' which was used Iearnecl counsel the timing of the finding of the material against the Petitioner to detain him which came to light only after his fabricated for the acquittal it was evident that this material was false and sole purpose of keeping him in custody With regard to the contention Constitution and that he was an "enemy alien" under Article 10 (9) of the as such the safe guards provided in Article 10 (4) would not apply to him that this he submittecl that the Petitioner was not an "enemy alien" and State of War term might only apply to him if Pakistan was in a declared (as opposed to the so called War on terror) against a Country of which he 'a was a national and since in this case there was no declared State of War "enemy alien" as and the petitioner was a Pakistani national this term usetlinArticlegoftheConstitutiondidnotaPPlytohim.Inthe subiect to the alternative he submitted that if the Petitioner was released had restrictions imposed under S.11 EE the petitioner under instructions date and time agreed to provide a surety bond, report to a PS at a given device' for anrl allow him to be monitored by any effective monitoring permissible under example, mobile phone ancl other restrictions legally S.11 EE ATA. tn suPPort of his contentions he placed reliance on

FederationofPakistanVMr'AmatulJalilKhawaja(PLD20035C442\, ArabAkbarDilVGovernmentofSindh(PLD2005Kar538),Ghulam Qasim v Covernment of Punjab (2020 MLD 166))' Muhammad Irshad v

Government of the Puniab \2020 P Ct ' Ll 2M)' Allah Nawaz v

Shah v Government of Khyber Pakhtunkhwa (2019 MLD 1016)' Safeer The State (2016 MLD 986), Baram Khan v Government of Balochistan (PLD 2019 Balochistan 120), Aurangzeb Khan v Govetnment of Khyber of Khyber Pakhtunkhwa (2016 MLD 330), Waqas Hussain v Government Pakhtunkhwa (2016 P Cr.Ll 972), Syed Mubbashar Raza v Government of of Puniab (PLD 2015 lahore 20), Muhammad Nadeem v Government Puniab (PLD 2010 Lahore 371) Muhammad Din v District Magistrate (?020 P Cr' (1992 MLD 107), Muhammad lrshad v Government of Punjab L I 206), Ghulam Qasim v Government of Puniab (2020 MLD 166)' Allah 1016)' Baram Nawaz v Government of Khyber Pakhtunkhwa (2019 MLD Khan v Government of Balochistan (PLD 2019 Balochistan 120),

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RehmatutlahaliasRehmatolivGovernmentofKhyberPakhtunkhwa (PLD 2018 Peshawar 17), Mst. Sana Jamil v Government of Punjab P Cr. L I 424), Waqas Hussain v Government of Khyber Pakhtunkhwa

(2016 P Cr. L g72), Safeer Shah v The State (2016 MLD 986)' Aurangzeb

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KhanvGovernmentofKhyberPakhtunkhwa(2016MLD330).Syed Mubbashar Raza v Government of Punjab (PLD 2015 Lahore MuhammadNadeemvGovernmentofPunjab(PLD2010Lahore371), Hali Muhammad Ishaq Shah v Dishict Magistrate' Lakki Marwat P Cr. I- J 1558) and numerous definitions of "enemy alien" from various

clictionaries

8.Learnetl Advocate General Sindh has contended that the correct

test for determining whether the material placed before the Home to be on a Secretary justifies issuing a preventive detention order ought the current test subiective basis although he has conceded that in Pakistan

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is an objective one based on the Supreme Court case of Pakistan of the Mr.Amatul falil Khawaia. He has urged this court that on account according to changing times especially in terms of the war on terror which was attacked in hirn arose in Pakistan when the Army Public school (AI€) one 201qb; militants that the aPProPriate test ought to be the subiective by an which should be matle on an assessment of the material made was the Home expert in assessing intelligence material which in this case based on Secretary rather than iudges; that a hybrid test Primarily and expertise and subfectivity be introduced to analyze the intelligence justified especially as determine whether a preventive detention order was was better that it intelligence could never be precise and that was why it especially be determined by the competent authority instead of the courts ! as such issues were very sensitive and concerned national security and in India' tlris respect he placed reliance on a number of Judgments from contention' Malaysia, Singapore, Nigeria and Zimbabwe in support o[ his He also relierl on certain Pakistani Judgments from Lahore and Quetta concerning the upholding of preventive detention orders' These

have judgments although being only of persuasive value nevertheless been considered by us anti we have observed that by and large they are detention under distinguishable from the Present case as they concerned and even a second the MPO, concerned a first preventive detention order but not a third which has been issued anr.l challenged in this t case, they do-

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not all relate to terrorism which the second and third preventive detention

clrders are related to in this case and a number of the Persons against were already under going a whom preventive dentition orders were made they may have been granted Post arrest bail whereas the trial although otherwise he contended that petitioner has been acquitted on appeal; even there was sufficient material to iustify the preventive detention orders material which had been issued by the Government of Sindh based on the the preventive placed before the Home Secretary who had issued petitioner fell within detention orders; he further contended that the an "enemy alien" and as Article 10(9) of the Constitution and as such was to the petitioner as he such Article 10 of the Constitution did not apply of the war on terror against ower,l no allegiance to Pakistan and was a part ( board or to be released Pakistan and therefore he had no right to a review of his contentions until determined by he competent authority ln support he has placed reliance on Moulvi Farid Ahmad v Government of Maharashtra v Bhaurao Pakistan (PLD 1965(W.P.) Lahore 135, State of 1705)' Liversidge v Puniabrao Gawande (AIR 2008 Supreme Court Annotated-338)' Mirai Anderson and Another (All England Law Reports and Superintendent Muhammad Khan v Government of West Pakistan Shamim Akhtar v of lail, Karachi (PLD 1966 (W P) Karachi 282)' Syeda GovernmentofPakistanand3otherg(1996PCr.L.J326),AamnaBibiV Covernment of Balochistan (2003 YLR 1460)' Saadullah v Secretary' 270)' Federation of Home Department and Another (PLD 1986 Quetta SC M2)' Syed Pakistan v Mrs. Amatul Jalil Khawala (PLD 2003 MuhammadAlivGovernmentofBa]ochistan(1999PCr.LJ1490), (1'979 P Ct'Ll 658)' Malik Mushtaq Anwar v District Magistrate' Lahore Appeal No'L09 oi 1915)' Part Cargo v SteamshiP "Zamora" (Privy Council > ex Parte Hosenball (All R v Secretary of State for the Home Department' England Law Reports-452), Secretary of State for the Home DePartment

v Rehman ( 2001 UKHL47), Karpat Singh v Minster for Home Affairs Teo Soh Lung v Minister and Others (1989 LRC (Const) Malaysia -648)' Chan for Home Affairs and others (1990) LRC (const) Singapore-490), and the Arts Hiang Leng Colin and Others v Minister for Information (1997) 7 LRC -107 Singapore), Wang and Others v Chief of Staff' LRC (Const) Nigeria - Supreme Headquarters, Lagos and Others (1986) 2154)' Mohd' Subrati v State 320), H. Shah v State of W'B' (AlR 1974SC

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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 which University Press and various Terrorism laws applicable in the UK concern pre charge detention and scholarly articles on this issue' Learned

Aclditional Attorney General produced a notification issued by the its Ministry of Interior where by the Federal Government had delegated powers through S.33 of the ATA to Home Secretaries to issue orders

uncler S.11 EE ancl as such in this respect he contended that the Preventive the ATA had cletention orders issued by the Government of Sindh under been legally issued. Addl. Prosecutor General Sindh under instructions of Advocate Y the Prosecutor General Sindh adoPted the arguments of learned General Sindh

and the

9.We have heard the Parties at length, considered the record relevant law including that cited at the bar'

10'AttheoutsetwewouldliketonotethatPakistanisgovernedby is a blend of the Constitution of 1973 asamendetl from time to time which of the secular law and Islamic law as is made clear by both the preamble forms a Constitution and the Objectives resolution at Article 2 (A) which part of the Constitution, When the Constitution is read in a holistic is one of manner it is apparent that the form of Government in Pakistan the Parliamentary democracy based on the trichotomy of powers between balances on each executive, legislature and the judiciary where checks and Constitution organs powers are ensured by the other organs of State' The through numerous of its Articles ensures the independence of the

jucliciary and the rule of law and the due process of law as would be

expected in any civilized society and Islamic welfare State' is that it

11.In our view one of the key attributes of our Constitution seeks to protect and safeguard the rights of the individual from misuse or

abuse of executive powers and does so by enshrining a number of Constitution' It fundamental rights which are found in Chapter one of the balance in also in our view aims to strike a fair, legal and legitimate the State based preventive detention in appropriate cases in the interest of t

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from being misused for on sound reasons and prevent such detention ulterior purposes by the executive'

Constitution in

12.We set out below a number of the Articles of the in terms of this petition with material part which we consider are relevant 9 and 10' themost imPortant ones, in our view, being Articles fundamental right as Article 4 of the constitution (although not a One of the Constitution) reads as under:- per Chapter in accordance with law' to be dealt with

4.Right of individuals-pttuction etc.-(l) To tt'" of law and to be treated in "r,;oy right every citizen' accordance with law f, ihe inali"nable -of the time being for wherever he may be aJ oi "'u'y other Person within Pakistan.

(2)In Particular-

body' rePutation

(a)no action detrimental to the life, liberty' o. prop".,y of any person shall be taken except in accordance with law;

(b)no person shall be prevented from or be hindered in iJi"j,rlu, which is not prohibited by law; and the law

(c)no person shall be compelled to do that which does not require him to do'

Chapter One of the Constitution creates certain fundamental rights.

fundamental Those Articles of the constitution which create which we rights and set out the consequences of their breach co'nsider applicable to the Petition in hand are set out as under in material Part.

8.Laws inconsistent with or in derogation of Fundamental or Rights to be void.- (1) Any law, or any custom .usage with the ) havins the force of law, in so far as it is inconsistent .jgnit".."f"*"a by this Chapter, shall' to the extent of such inconsistencY, be void.

(2)The State shall not make any .law which t:k* 111I :i ltriag"s the rights so conferred and any law macle rn fontri,rention oi this clause shall, to the extent of such contravention, be void.

(3)The provisions of this Article shall not apply to-

Forces' or of

(a)Any law relating to memhrs of the Armed irr" poii"" or of solh other forces as are charged with the nl"i"*n.. of public order. for the purpose of ensuring the

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of proper discharge of their duties or the maintenance discipline among them; or

1[(b) any of the- in force

(i)laws specified in the First Schedule as iri-'meaiutJty 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;l

shall be void on and no such law nor any provision thereof ;h; il; ili .u.t' tut''ot prov.isiol. is inconsistent with' or re-pugnant to, any provision of this Chapter' (b) of

(4)Notwithstanding anything contained in ParagraPh clause (3), within a pu'i-od of two years from the { shall bring the .or"-"".i"g day, the appropriate Legislature i"*"".p*triJ'i"zpu,i Ii of the First Schedulelinto Chapter:

this .orlforrnity with the iights conlerred by by resolution Provided that the aPProPriate Legislature may extend the saia peiioa of two years by a period not exceeding six months.

Explanation'-lf in respect of any. l"* 'tM"illt::::f]:*" (Pirliament)l is the appropriate Legislature' such resolution ,hr b" u resolution of the National Assembly' (5) The rights conferred by this C!pt"-t shall not be - Constitution' iuspended except as expressly provided by the of life 9.-- Security of person. No person shall be deprived or liberty save in accordance with law'

10.Safeguards as to arrest and detention'-(1) No person who is airested shall be detained in custody without being informed, as soon as may be, of the grounds for sucharrest' nor shall he be denied the right to consult and be defended ! by a Iegal practitioner of his choice'

(2)Every person who is arrested and detained in custody of inutt U"'proarcetl before a Magislrate w1th.1 a period i*"",y-fJ"t hours o{ such airest, excluding the time nu."rrrry for the joumey from the place of arrest,to the be Court of the nearest Magistrate, and no such person shall detained in custody beyond the said period without the authority of a Magistrate.

to any, Person

(3)Nothing in clauses (1) and (2) shall apply who is arrested or detained under any law providing for preventive detention.,

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made

(4)No law providing for preventive detention shall be preiudicial to e>icept to deal with fersons acting i" I :?1""t the integrity, ,".rrity or defense of Pakistan or any Part or. the ,i E. Jrr"rnal affairs of Pakistan, or public ordpr' ".uof, maintenance of supplies or services, and no such law shall authorize the detention of a person for a -period fltfrtee months] unless the appropriate Review "*.""amg sou.J hu!, aiter affording him an opportunity of being heard -.p"*on, ir, reviewed hls cas" and reported' before .the of the said Period, that there is' in its opiniory r"ifi.i"* cause for sucir detention, and' if the detention "rpirrtlo.t is

continued after the said period of l[three monthel' unless -upp.opriut" it-," Review doarrl has reviewed his case and r"p"riJa, Lefore the expiration of each period of three *o.tths, that there is, in its opiniory sufficient cause for such detention, Review Explanation I.-In this Article, "the aPProPriate V Board" means,

(i)in the case of a Person detained under a Federal Law' a Itar,l appointed iy the Chief Justice of Pakistan .and of consisting'of a Chairman and two other Persons' each *ho- is"o. frus b"en a Judgeof the Supreme Court or a High Court: and Law'

(ii)in the case of a person detained under a Provincial 'f""ra appointed by the Chief Justice of the Court -High other concernecl inrl consisting of a Chairman and two p".t""t. of whom i-s or has been a Judge of a High Court.

"*h Explanation II'-The opinion of a Review Board shall be in terms of the views of the maiority of its ".p."rt"a members.

(5)When anv person is detained in pursuance of an order for preventive- detention' the -ra" una"t l.,y lu* providing

authority maiing the order shall, 2[within fifteen the davsl from such ditention, communicate to such person made' and shall afford 5 ;;ffiJt on which the order hasofbeen making a rePresentation f,im the earliest oPPortunity against the order:

orovided that the authority making any such order may l.fur" to tlisclose facts whiih such authority considers it to be against the public interest to disclose'

(6)The authority making the order shall furnish to the )fp.op.iate Review Board all documents relevant to the case ,'ni"tt u certificate, signed by a Secretary to the-Gorr'ernment interest to concerned, to the effect that it is not in the public furnish any documents, is produced

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(7)Within a period of twenty-four months commelcing in" auy of hii first detentio^ i. p""unt" of an order made under a law providing for preventive detentiorL no Person shall be detainetl in pursuance of any such order for more than a total period oi eight months in the case of a person order detained for acting in a manner preiudicial to public and twelve months in anY other case:

person who Provided that this clause shall not apply to any ;t ;;6; Ly, o, *ork. for, or acts on instructions received f.o-, tnJ enemy 3[or who is acting or attemPting to.act inofa preju,Jiciai to the integrily, security or defence Pakistan or any Part thereof or who commits or attemPts to .o*..,i ur,y u.i *hi.h u-o,nts to an anti'national activity as defined in a Federal law or is a member of any association such anti- which has for its objects, or which indulges in' any national activityl.

(8)The appropriate Review Board shall determine the place oi a"t".ttio.t of th" p"rro., detained and fix a reasonable subsistence allowance for his family'

(9)Nothing in this Article shall apply to any person who ior the time being is an enemy alien'

l0A. Right to fair trial.-For the determination of his civil him rights ;d obligations or in any criminal charge against u i"rron shall be entitled to a fair trial and due Process''l

of

14.Inviolability of dignity of man, etc'-(1) The dignity man and, subjlct to law, the privacy of home' shall be inviolable.

(2)No person shall be subiected to torture for the purpose of extracting evidence

15, Freedom of movement, etc.- Every citizen shall have the right to remain in, and, subject, to any reasonable restriction irfifot"a by law in the public interest, enter and move freely throughoui 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 *utit g u"}i tpecial provision for the protection of women and children.

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13.[n out rliscussion 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.

"I4,TheFirstPreventiveDetentionOrder(FirstPDO)underS'3(1)of theWestPakistanMaintenanceofPublicorderlg50(MPo)dated 10.04.2020 was issued by the Government of Sindh for a period of 3

months

set out

15.For ease of reference both S.3 (1) MPO and the First PDO are below;

'S.3 (1) MPO.Power to arrest and detain suspected persons'-

(1)dorernment, if satisfied that with a view to preventing J ur,y p"i"o. from acting in any manner preiudicial to public safety orihe maintenance oipublii 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 sub-section (7)' of such person for suih perio.t aj may, subiect to the other prowisions of this section, be specified in tire order, antl 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 DEPARTMENT

ORDER

NO.SO flUDL.I l)/iHD/6-3/2020 Whereas, a ietter is received from "lnspector Deputy General of Police South Zone' Karachi vide N o.DleP / SZ / zlB / 1,65 / 2O2o Karachi dated 70 M'2020, wherein he hus .epoited ihut nbdrrl Hameed Bughti son of Ali Jr4^urad Bughti i*priJorl"a in Central Jail in case FIR No'145/2005 uls3/4 Explosive Act/302/32a/a27 /34 PPC r/w 7 ATA of Police Station ) Rriitl".y Maiian, is being released from Jail custody on 10 04'2020' The DI"GP South Zone Karachi has informed his presence at any public place is likely to Pose Srave threat,to the pub-lic safety and c",rse treach 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 public releaserl he ,.,uyiit against the interest of the country and and that the pr.sence Lf Abdul Hameed Bughti son of Ali Murad at any public place is likely to Pose grave threat to the public safety anel cause breach of peace and tranquility;,

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3.AND NOW THEREFORE, in exercise of the powers under section 3(1) of the West Pakistan Maintenance of Public Order reason to Ordinance, 1960, the Government of Sindh has sufficient arrested believe that Abdul Hameed Bughti son of Ali Murad be and detained for a period of 90 days from the date of arrest His Central custody shall be placed under the Senior SuPerintendent of [)rison Kalachi.

4.He shall be at liberty to make a rePresentation to the Provincial Government against this order' sd/-

(DR. MUHAMMAD USMAN CHACHAR)

ADDITIONAL CHIEF SECRETARY

HOME DEPARTMENT

Karachi dated 10'04'2020"

77.That a few days prior to the exPiry of the First PDO a Notification

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datecl 07.07.2010 was issued by the Government of Sindh which placed the

petitioner on the 4th Schedule of the ATA by virtue of S'11 EE ATA and EEE of thereafter one day later on 08.07.2020 the Second PDO under S'11 the Anti Terrorism 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 S.11EE and S'11EEE ATA 7997 ' the Notif ication and the Second PDO are set out belowi S.11EE. Proscription of Person. 1[(1) The Federal Government may, by order published in the official Gazelte' list a Person as a on an ex-Parte basis' if fr*..it"a perro.t i., the fourth Schedule thur" u." reisonable grounds to believe that such person is-

(a)concerned in terrorism;

an organization kept ibj a,-r activist, office bearer on an associate of under observation under section 11D or proscribed under section 11B; and

(c)ir-r any way concerned or suspected to be concerned with such }, susPected orgu.riruiiorl or affiliated with any grouP or organization toie involved in terrorism o. seciaiianiim or acting on behalf of' or at the direction of, any person or organization proscribed under this Act.

to Explanation.- The opinion concerning reasonable grounds ftom buiieu" m"y be formed on the basis of information received source, whether domestic of foreign including ""f ".Jiir" governmental and regulatory authorities, Iaw,enforcement igu.,.i"r, financial intiligence units, banks and , on-banking .5-puni". and international institutions ] 1[(1A) The grounds shali be communicated to the proscribed person within three aryt .i the passing of the order of proscription] (2) Where * a * as the Federal 1* f"i*"'t nu-" l, li.f,d in the Fourth Schedule' other action which may ih" .ur" may be, with out prejuclice to any

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.a lie against such person untler this Act or any other law for the time bein[ in force, may take following actions and exercise following Powers, namely:-

execute a bond with one or more sureties ' ' require such personoftothe (a) District Police Of{icer in the territorial to ihe satisfa;tion limits of which the said person ordinarily resides' or carries on business, for his good behaviour and not involve in any act of terrorism or in any manner advance the obiectives of the organization referred to sub-section (1) for such period not exieeding 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 or.1er (im to be detained and protluced 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 J clause (a) expires:

I'roviderl 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 of?i.".'ir, charge of thqPolice Station of the concerned area before moving from Lis Permanent place of residence. for any period of time ;d 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;

1ii; f,ir.t 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 in the iiui tnut fre strati not reside within areas specified order;

(d)direct that he shall not visit or go within surrou;rdings specified in the order including any of the under mentioned places' without 4 the written permissio-n oi the officer in charge of the Police Station with in whoie jurisdiction such Place is situated, namely:-

(i)schools, colleges and other institutions where persons under twenty-o.," y"uri of age or women are given.education or other training or are housed permanently or temPorarlly;

(ii)thelatres, cinemas, fairs, amusement Parks' hotels' clubs' or restaurants, tea shops and other place of public entertainment resort;

(iii)airPorts, railway stations, bus - sta-nds, telephone places;

exchanges, television stationi, radio stations and other such (Iv) public or private Parks and gardens and public or private playing fields; and,

3s1

a (v) the scene of any public meeting or procession of any assemblage of the public whether in an enclosed Place or otherwise in conneciion with any public event festival or other celebrations;

(e)check and probe the assets of such persons or their immediate iamily membeis i.e. Parents, wives and children thlough 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 obiectives:

Provided that no order under clause (d) or (e) above shall be made operative for a period of more than three years; and

(l)monitor antl keep surveillance over the activities of such person through police or any other Government agency or any Person or authority designated for the purpose.

J (3) [Where any Person is aggrieved by the order of the Federal Government ma.le under sub- section (1), he may, within thirty clays of such orr.ler, file a review application. in writinp 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 sub-section (3) may file an appeal to the High Court within thirty clays 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 sub-section (2), shall be punishabie with imprisonment of either description for a term which may extend to three years, or with fine, or with both'l 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 l1EE, it is necessary so to do, may, by order in writing, direct to arrest and detain, in such custody as may be satisfied, such pelson for such period as may be specified in the order, and Government iI + 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 welve months.

(2)The provisions of Article 10 of the Constitution of the Islamic Republic of Pakistan shall mutatis mutandis apply to the arrest ani detention of a person ordered under sub-section (1)'l 1.9. The Notification.

GOVERNMENT OF SINDH

HOME DEPARTMENT

I

I NOTIFICAT ION

N O.SO(JUDL.I l\/HD/6-3/2020: Whereas, the Inspector General of Police Sinrlh Karachi vide letter No.AIGP /Legal /CPO/ ATMC/ 2850/2020 dated 07.07.2020 has recommended in view of report of Additional Inspector General of Police Counter Terrorism Department (CiO) Sinan, Karachi vide letter No'Addl'lGP/ crb/ N AP-PAP / 4t' scHDL-'t / 5652-58 / 2o2o / dated,j7'07 2020 to place/eniist the following one (01) Person on the list of Fourth Schedule of Anti Terrorism Act 1997: -

Sr# Full Name 01 Abdul Hameed Bu S o Ali Murad Bu

AND WHEREAS. Section 11-EE of the said Act read with National Crisis Management Cetl, Minishy of Interior Notification S'R'O' (1) /2074 dated 19.10.2014 empowers the- Government of Si"avffo-" Secretary of Province to notify the name(s) of such J person(s) to be enterei in the Fourth Scheduled of the Act said ;

NOW THEREFORE, in exercise of the powers conferred under section 11-EE of the Anti-Terrorism Act, 1997,|lre name of above mentioned person is hereby entered in the Fourth Schedule of the ATA, Act, i9gZ, fo, a period of three years with immediate effect' unless otherwise rescinded or withdraw by the Government of Sindh.

Without preiudice to any other action which may lie under any law for the time being in force, he shall:-

(a)Execute a boncl with one or more sureties to the satisfaction of the Distdct Police Officer in the territorial limits of which the said person ordinarily resicles, or carries on business, for his good tehavior and not to involve in any act of terrorism or in any manner advance the obiectives of the organization referred to in sub-section (1) of Section 11'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 c:letained and produced within twenty four hours before a Court which shall order him to be detained in prison until i 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 ih" &i.". in charge of the Police Station of the concerned area before moving out of his place of residence including the place he is movinglto 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 resitlence registered with Police Station' (ii) to ge-t 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'

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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 bedesignaLd any time for this purpose by the Government of Sindh.

The listed person(s) may appeal to the Govemment of Sindh in terms of Section 11-EH (3) ;f the Act within 30 days of issuance of this notification.

ADDITIONAL CHIEF SECRETARY

HOME DEPARTMENT

Karachi dated 07.07.2020"

20.The second PDO

-GOVERNMENT OF SINDH

HOMEDEPARTMENT

ORDER

NO.SO(f ud-II)/HD/G3/2020; Whereas, Inspector General of Sindh vicie t"tt". ito. AIGP/LegallCPO /ATMC/28fi/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-PAP/4thSCHDL-1 / 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 place,J in the 4s Schedule under section 11EE of the Anti- Terrorism Act,1997;

1.Abdul Hameed Bugti s/o AIi Murad Bugti

Whereas being satisfied the Government of Sindh included the above person-in the 4th schedule under the Anti-Terrorism Act' 1 997 v iie order No. SOfl ud-II)HD/ 6 -3 / 2020 dated Now the DIGP South has reported vide letter No' DICP / SZ / ZIB / 258 / 2020 'Jated 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 affiliated in past with such organizations.

NOW THEREFORE the Government of Sindh being satisfied that there exist apprehension that above named person rnay inrlulge in networking / terrorism if released and therefore is .uqrri.".l tJ be detained foi the purpose of maintaining peace and tranquility by way of detaining him and hence under section 11- EEE of Anti-Terrorism Act, t*7 hereby direct that above Person namely Abdul Hameed Bugti S/o 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 tl

1 The order shall be served upon the person named above who shall have the right to consult and be defended by legal petitioner(s) of their choice.

sd/-

ADDITIONAL CHIEF SECRETARY

HOME DEPARTMENT

Karachi dated 08.07 .2020"

2'1. That prior to the expiry of the Second PDO the Third PDO under S.11 EEE of the Anti Terrorism Act 7997 (ATA) read with Article 10 and 10 (9) of the Constitution dated 06.70.2021 was issued by the Covernment of Sindh for yet another period of 3 months'

22.The Third PDO is set out below for ease of reference: f

"GOVERNMENT OF SINDH

HOME DEPARTMENT

ORDER

NO.SO(IUDL.II)1UD/6-\/2020 V\rhereas, Deputy Inspector General of Police South Zone Karachi vide N o.DlG/ SZ / ZIB / 7 67 / 2O2O tlated 06.10.2020, has recommended for the preventive detention of the Abdul Hameed Bughti affiliatedwith 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 ancl inputs from relevant law enIorcement agencies I t"tisii"d that the grounds exists for extending preventive 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 clated 08.07.2020, hereby directs that the person named "r".,"No.

above be detained for a further puiiod of tfuee months on expiry of current detention under section 11EEE of ATA 1997 read with ) article 10 (5) 'Hisand 10 (9) of the Constitution of Islamic Republic of Pakistan. custody shall be placed under the Senior Superintendent of Central Prison Karachi.

x/-

ADDITIONAL CHIEF SECRETARY

HOME DEPARTMENT

Karachi dated 06.'10.2020"

23 This Third PDO is due to expire on 05'01.2022' lq

L 24. At the outset we find that the Home secretary had the lawful authority to issue a Notification under S.11-EE of the ATA which power hael been delegaterl to him under S.33 ATA by the Federal Government' As S.11 EEE ATA 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 S'11 EEE

AI'A.

25.We note that both the first PDO and the second PDO have now expirerJ and are no longer in the field and as such we shall not determine their legality. Their significance so far as this petition is concemed is to provicle us background inJormation being a part of the so called, "facts J 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 Iiberty 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 Covernment of Sindh as being on the 4th Schedule of the ATA by virtue of S.11 EE ATA and on its expiry the Second PDO under S 11 EEE was immecliately issued and came into effect which ensured that the petitioner remained in lail for another 30 days and that it was issued under the AIA 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 whitst considering the background to the first and second PDO's to assist us in determining both the legality of the Third PDO and the bonafides 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 background 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 peopte and serious iniuries to many others which as mentioned above Ieacl to the Petitioner being sentenced to death. The petitioner's co-accused )(l

I were sentenced 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- accusecl were in our view regardecl/ treated as members of the Baluchistan Liberation Army hereinafter referred as (BLA) which was a proscribed organization which was at that time active in Pakistan and still remains so toriay in Anti State activities as was recently shown by an attack on the Chinese embassy and Stock Exchange in Karachi for which the BLA claimetl responsibility. Although the offenses for which the petitioner was originally charged with were L4 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 iail as such in I 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 S.11 EE 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 rnake sense to us if the very next day he is detained under S'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.

2ll. Be that as it may we uphold the Notification placing the name of the petitioner on the 4s schedule of the ATA by virtue of S'11 EE as being + a member of the BLA and these restrictions imposed upon him under S'11 EE of the ATA for monitoring PurPoses as given by AICP /Legal II in his comments is "in order to effectively monitor his activities" ought to Sive sufficient 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 tieclared International Armed conflict which is not the case in

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Pakistan today as we shall come to later in this order' It may be that a number of other jurisdictiors such as India, Malaysia, Singapore, Nigeria and Zimbabwe have left the clecision to assess the material with the competent authority or executive rather than iudges in order to satisfy it self as to the need to Pass a preventive detention order and perhaps in those other foreign the deciding authority has greater iurisdictions expertise. In any event as will be mentioned 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 Uue that most iudges do not have particular expertise in assessing and evaluating intelligence material but Judges have been doing so in this counlry since partition' It may be that

some better expertise is required but that is for Parliament to determine f and pass appropriate laws keeping in view that Article 10 (4) of the judge to Constitution has provided for a review board comprising of a 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 leamed Advocate General. Even otherwise in terms of expertise it is not always necessarily the case that a iudge 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 I 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 antl General Administration, assigned to Canada where

he was involveil 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 )udges lf such an

argument were to be accepted it might also lead to further complications' For exarnple, the FBR officials and Tribunals adjudicating upon taxation

I 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 ]udge could not hear the appeal as he/she had lesser expertise than the Taxation Tribunal which had decided the matter anll 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 f upon by each side. Even Review Boards under Article 10 of the Constitution consist of High court )udges 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 subiective 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 appllcation 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 Pakietan (i'LD 1967 SC 373) as approved and referred to in the case Mir Abdul Baqi Baluch V Government of Pakistan and others (PLD 1958 SC 313)

36t

I and reiected 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 tegard 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 uar measure. The maiority decision in Ghulam Jilani's case altered the taw laid down in Liversidge'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 9S (2xbxil 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 iurisdiction is subject to judicial review. If this function is to be discharged 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 I ground alone, -this appeal was liable to be allowed and the case sent back to the High Court for re- hearing, 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 )l

3LL

I duty of a more onerous nafure 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 Pakistan 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.Amatul falil Khawala (PLD 2003 SC 442) which dealt f with PDO's in great detail and reviewed all the then exiting 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 iustified a PDO being issued against a person and at P.467 in terms of the test to be applied as under;

"We have carefullv exarninecl the respective contentions as agitateci on behalf of the parties in the light of relevant provisions oi Constitution of Islamic Republic oI Pakistan, the Security of I'akistan Act, 1952, the Qanurr e-shahaclat Order, 19ti4 ancl juclicial precetlents. It would be relevant to rnention 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 levcl and is a serious threat to natior.ral/ interu;rtional piece, security and trancluility, We have trlso pl:rusetl the ortler impugncd 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 I of Pakistan Act, 1'952 was available which could not be appreciated in its true perspective by the learned Single fudge who erred in substituting his own opinion to that of Federal Covernment by misconstruing the provisions of section 3 of the Security of Pakistan Act, 1952 and misinterpreting the word "satisfaction" as used therein which resulted in serious miscarriage of iustice? Br:lore thc said tluestion could be ins!,v('ireLl rn this particular colltext wc have thrashed out almost the ontire law available on the subject, detail whereof is as follows:--

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I 6. The ludiciat consensus seems to be as under:-- (i)"An oreler of preventive cletention htrs to satisfy thc requirements laid down by their Lordships of the SuPreme Court that is to sav (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 glounds of detention and if one of the rounds is shown to be bad nonexistent 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 aulhority must place the whole material, upon which the ordlr 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 iourt to decide. In addition to these requirements, the Court has further to be satisfied, in cases of I preventive detention, that the order of detention was made by ihe authority prescribed in the Iaw relating to Preventive detention: that each of the requirements of the law relating to preventive detention should be strictly complied with; that isatisfaction' in fact existed with regard to the necessity of preventive detention of the detenu; that the groutttls of )tetuntion had beetr Junrishctl utithin the period prescribed ba law, antl if no such peioil is ptescribed, then'ns soofl as may be'; that- tlrc grounds ,7 drt"rtio, should not be uague and inilefi"ite and shoild be coinprehensitte enough to cnable the detenu to make rt,ptesentatiotr against his detentiotr to tlrc authoritq presctibetl bv lau; that tlie gto n.ls of dctentiotr th'lt is they are flot irreleuant to the aift, atd obiect of this law and that the detetiiotr should not be for exttaneous considerations or fot putposes u,hich may be attacked on the gtou'td o/ malice"'

PLD

il.iaqat Ali v. Government of fintl through Sccre'tary, Home' 1973 Karachi 78). (Emphasis provided)

(ii)"Thc'rigtrt of a Person to a Petition for habeas corPus is a high prcrogative right antl is a Conititutional remedy for all matters of itt.,goi' .on fin"inent. 'Ihis is onc of the most fundamental rights knou,n to thc Constitution. Thele being limitation placetl on the I t'xcrcisc of this right, it cilill.lot be inrporteti ou the actual tlr assutneel restrictioll which ma1' be imposecl by any suborclinate Legislaturc. 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 restoiation of his liberty which is his basic right' In all cases where a person is detained and he alleges that his detention is u nconstiiutional 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 iurisdiction of the High Court, under Article 199 and ask to be released forthwith' (PLD 1965 Lah 135) He r'lr'cLl not wait for the opinion of the Advisorv Board before ;ir.iving [or a habeirs corPus. (AIR 1952 Cal 26) However' t

I juriscliction o{ High Court while cxamining the material before the rletair.ring authority is not ur-rlimitecl. When an order passed by an exc'cutive authority detaining a particular person is challcngetl hy invoking extraorclinarv iurisdiction of High Court it is always by ,.,.t"unt oi iuclicial review and cannot be treated as appe,rl oi revision. The Court cannot substitute its discretion for that of administrative atient. The only function of the Court in such cases is to see whether or not order of detention is reasonable and objective.' (PLD 7979 Lah. 741 (Ernphasis providetl).

(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 profeised by the detaining authority. (AIR 1953 SC 451) A eluty has been cast upon the High Court whenever a Person cletainecl in custody in the Province is brought before that Court to ''satisfy itself that he is not being held in custody without I lawful authority or in an unlawful manner." This Constitutional r.luty c;rnnot he discharged r:rerely bY saving that there is an order which says tl.rat he is b"i,tg so detained lf the'mere production of an orcle.r of detaining authority, declarilrg that he u'as satisfied' w;rs to be held to be sufficient also to "satisfv" the Court thet-r what would bc' thc function that the Court was expected to peliot m in the tiischarge of this duty. Therefore it cannot be said ihat it would be unreasonable for the Court, in the proper exercise of its Constitutional duty to insist uPon a disclosure of the rnaterials 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 Pakistarr PLD 196ti SC 313). (Emphasis provicled) (iv)"High Court cannot claim in the exercise of writ iurisdiction to '.lrr.p ih" functions of the authority in which Power. has been veste,l 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 thii sense that it has been said that the Court is not concernecl with either the adequacy or the sufficiency of the grounds upon which action is taken. The Court in order to be 1' Jatisfied as required by the Constitution must know that there were ir-r fact grouncls retatable to the purPoses of the statute- uPon which the act]on 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 starute itself tloes not require the authority to act uPon reasonable grounds but leaves him to act upon his own subjective satisfaction ln view of the provisions of Article 199 of the Constitution that degree of ,"uror,ubl"nass 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 io be acting in pursuance of a statute then what would be the material upon which the Court could say that it-

I wassatisfiedthatthedetentionorimpugnedaction.had'notbeen is that every taken in an unlawful manner' The presumption prima facie ;;;;i';;;;"i without trial and cbnviction is unlawful." (Government or West Pakistan v Begum Agha Abdul (Emphasis provided)' Karim Shorish Kashmiri PLu 196,9 SC 14) it was (ln the case of Abdul Baqi Batuch PLD 1968 SC as to whether indicatec{ that it is for ttre iigh Court to consider could have ,'h";;;;" ;."nds upon whici any reasonable person been satisfiei as to the necessity of detention) Test to be aPPlied.

,,TherecouldbenootheropinionthatitisfortheHighCourtto examinewhileexercisingitsConstitutionalJurisdictionthe detainin-g authority is material on which the satisfaction of the to determi"" *tt"tttut it was sufficient for the I based and had here at of the detaining authority' Let we mention Court "",i.iu"rio" that when u p'iuil"g" is ilaimed even the High il;l;il material regarding would be competent to examinu ih" dot'*tnt / as to whether such which privilege is sought "l otd"' to tletermine lightly or as a matter of ^'ivilpop is heins claimed i,-t aJuisudly, tlhe dictum raid down in i;l;T' ; ,il':";;;;;; are rortiried'bv of Pakistan i,Lri-is6s9 sc 14,"Abdul Baqi Balcoh v. Government_ 20 DLR sc t*i:i;

io'l, i'r?ii Nutio''ui tiunk v Faridsons Limited reasonableness of the

249.The High Court can examine the srounds of detention so as to satisfy itself that the detenu has not or in an unlawful B"l" t"i't" *"i"lv *rtnt"ii"wfirl authority detiining authority but manner' It is not the 'atisfaciio'-' of only to be satisfied and thus in our irJi.i"i'.."t.i.us is alsootreouired d'etaining authority should have been ooinion the satisfaction ;::il"il'".r*i ""J'*'iil"' and iot on mere suspicion' doubt o. .oi|".t.rr"t presumptions'"(bold added) Government of

31.With regard to the malafides on the Part of the we are guided by the findings in Sinclh and the legality of the thircl PDO + thecaseofMrs.AmatulJalilKhawaia(Supra)whichheldatP.499;

"The words "without lawful authority" and "in lawful

(i)of the Constitution cannot manner" appearing i" n'titt" 199(b) be considered u' t"ttio'rog;t or superfluous and in fact deserve due consideration.

Article 199(b)(i) of "The words 'in lawful manner' used in to give meaning and the Constitution have been *uJ J"tiU"tutuly the Constitution itself content to the solemn a"autution under every citizen -to. be treated in that it is the inalienable .tgii "r accordance with law otiy in accoriance with 111^rrrerefore' ""a circumstances- a detention in determining as to how 'nl it' *ttut one would inevitably would be detention it u" 'l"L*i'f manner lf i" in accordance with law have first to see whether tf't"'uttio"

1Q

3'lo

.J-_

t 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 principles 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)

I

32.The malafides 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 rletention of the petitioner under the MPO, such material was sent to the Home clepartment which traveled on the same day up the bureaucratic chain which finally reached the Adl.Chief Secretary/Home Secretary on the same <Iay who on his own admission held several meetings and after applving his mind in considering such material issued the first PDO on the same c{ay 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, Iikewise all the PDO's were essentially issued

I

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 obiective satisfaction of the material considered by them in respect of the petiHoner and were base,,l largely on suspicions and presumptions, the switch from the first PDO under S.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

t placing the petitioner on the 4th Schedule of the ATA based on S11 EE which lead to invoking S.11 EEE ATA on the next day which once again the material we have seen could not have obiectively satisfied/iustified the issuing of the second PDO and finally the third PDO where towards the entl of the second PDO the idea was born of treating the petitioner as an "enemy alien" under S.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 after thought by the Govemment of Sindh in order to thwart the Petitioners I 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 the PDO reveals its hurried and self contradictory nature designed to keep petitioner behind bars for ever at all costs in that on the one hand it gives under the petitioner a right to make a representative vis a vis his detention 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 cleliberately and illegally deprived him

of his right to liberty without any legally iustifiable reason and thus the of third PDO is struck down as being issued malafide by the Govemment Sindlr

L.

33.Significantly, when we asked the Home Secretary as to how one recommended day after notifying the petitioner under S 11 EE ATA which "monitoring" what material had been produced or circumstances changed

S 11 EEE ATA

to justify issuing a third PDO against the Petitioner under the Petitioner he had no explanation. According to the Home Secretary a car could be was an expert in making car bombs and if he was released a car r-lriven to where the Petitioner was staying and he could PrePare this would mean bomb. If this argument is taken to its logical conclusion be detained that the petitioner could never be released and would forever

3'-lz

I 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 conclusion which we find troublin8 to say the least

34.The third PDO is also struck down as being issued without lawful authority on the glound that the Covernment of Sindh patently failed to apply its mind in satisfying itself that the material placed before it on an objective assessment iustified 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 months and thus the third PDO is also struck down as being issued with out Iawful authority as it was issued on the basis of vague and

I

insufficient material largely based on susPicionE and presumptions through which it was not possible for the Govemment of Sindh to be satisfied with on an obiective assessment of such material to lead it to issuing the third PDO.

35.The next issue is whether the Government of Sindh's reliance on by Article 10 (9) of the Constitution can iustify the third PDO being issued the Government of Sindh keeping in view that Article 10 (9) was not the mentioned in either the first, or second PDO as a ground for detaining petitioner and only emerged as a reason/iustification along with S 11EEE ATA when the third PDO was issued and came into effect' 36.ItseemstousthattheGovernmentofsindh,scaseinthisresPect prirnarily 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 foi such arrest, nor shall he be denied the .ight to consrit and be defended by a legal practitioner of his choice.

3 etc

(9)Nothing in this Article shall apply to any Person who for the time being is an enemY alien.

3l

is that the I 37. In effect the argument of the Government of Sindh petitioner can be classified as an "enemy alien" within the meaning of 10 will Article 10 (9) of the Constitution and as such the whole of Article to 10 concerning Safeguards as not be applicable to him and that Article detention will be ousted and arrest and detention including Preventative order as such the petitioner will have no right to challenge the detention and in effect can be kept in detention against him or even a right of review charges inclefinitely after his acquittal of terrorism the term "enemy

38.The question is therefore what is meant by (9) of the Constitution and whether alien" as contemplated in Article 10 Article 10(9)' the petitioner falls within the ambit of I role of the legislature to

39.Within the trichotomy of powers it is the judiciary to interPret those laws if such make laws and the role of the by now that if a statute has interpretation is necessary' It is well settled is no expressly provided for something without any ambiguity then there the same as the legislative intent is question of the courts interPreting given effect to unless it is deemed clear and the Act/Ordinance must be conshtution The iudiciary's role of interpretation of to be contrary to the is to a certain extent either the statute only arises when the statute unclear or ambiguous or is prima facie in violation of the constitution andinsuchcasesitisfortheiudiciarytointetpretthatpieceof that intent of Parliament in pa8sing legislation by trying to ascertain the their no authoity or pollet to substitute legislation' The courts hatte absolutely of simply becaux they may disapprwe uiiu,, fo, those intended by the legislatute tlpnrtiallnrlatonndtheT\ayinlphichtlntLatpisbeingapplied.

the case of |ustice Khurshid I 40. In this respect reference is made to (PLD SC 2010 P'483 Relevant Anwar Bhinder V Federation of Pakistan under:

P.492-4g3)whereby it was held as construction has "A fundamental principle of Constitutional framers of the to the intent of the ut*uv'uu"t'tf;il;;i;

'"o-i star in organic law th" ;""Ple adopting it' The Pole the constru;;; 6"'-t!n*'ion is-the intention of its "r'' una ujop*,. wr'"" the language of the statute is -,t",, m"eaning the task of not only -n"tafyor ut't or'i to arise' is not P# J";;ilttt It interpretation t"" be said allowable *ft'"t has no need of interpretation' declares' without more' the st"h "'i"*pt"t rotso;;--f"'iat' ' it' The rule of intention Si'"" ""a i' decisive on "f-'nT "* /

construction is "to intend the Legislature to have'm€ant t ffi; ;:;;;," *ty _:r**;".j;,;:m#,j; jii'lil a case, what the consequent:: "'?.-:.:.^;" ,.,.^mbisuous in a statute is unambrgu meaning of the language used and convenience' the courts and is in accord with iustic-e :l'i;";t;themseiveswithsupposedintentrons' tuf f" U"i*t"' ]l|l1t-"tt"' however admirable the same they would be traverins ffiil, 1l"j'.Ii:"".',"'it 111 legislating tot 'T*"-"tl""ii in" -"*i.g intende_d was *[i: ;,;.i ;;;''"'"

:;ilJli:,,X' l.:fi il"'tn"' the,. the mea n

court must interPret t"'tf'"g"'tn a:c:rda'lce^i'r1l the Legislature indication of the intentio;';i '"1* *"i*"t*ion :t 'ft:otty is that the crven. The first and Primary l"l"'"i u" found in the-^words intention of the Legislat'*^i"ti ;il;;iiet-"gis'iatureJ:T,'l.i:"'l;I"','.1"ff""'#: onry caoable of one constructron :':-'l'^:'r;;; hypothetical construction :lTY:

to the court to adoPt any othei y ;" ;: ;;il that suc.h *:U:f :X;:ffit;1,il"T:;

consistJnt with the allegt (bold added)

41'.InourviewbasedonaplainreadingofArticlel0(9)andthe is meant by the what rt is not precisely clear arguments of the parties of the framers alien" and thus we must look to the intent words, "enemy who might in adding Article 10 (9) and try to interpret of the Constitution alien"' fall within the term "enemY assist us on the of the have been able to greatly 42. None Parties and what the Article 10 (9) in the Constitution original intent of including the precisery wanted to convey through framers of the constitution have potentially "enemy alien" keeping in view that this would worcls, fundamental right regarding arrest and of persons their denied a class otherwise along with a host of other preventive or r.letention whether reasons for l Thus' there must have been compelling fundamental rights lead to Constitution as potentially this could adding Article 10(9) to the trial unlimited detention without

the so called cross party Rabbani Committee

43.Significantly when made substantial each Article of the Constitution and went through Amendment in the same through the 1gs Constitutional amenrlments to assume untouched and thus we can safely 2010 Article 10(9) remained as no part of the to some exceptional situations that it would be applicable redundant' Constitution can be rendered

31r

t' Court or otherwise'

44.No relevant Pakistani authority' Supreme us by of Article 10 (9) was placed before concerning the interPretation either partY.

World War We have observed that in both World War one and

aliens"' Two certain Persons were describeri as "enemy number of General has provided us with a

46.Learned Advocate do not consider these to be enemy" however we clefinitions of "alien alien" which relevant as the words used in Article 10 (9) are "enemy meaning to "enemy alien"' apPears to us to have a different of General relied on the definition i 47. For example, Iearned Advocate as set out belowi "alien enemy" in the Law l'exicon ,,Alienenemiesofacountryarethoseforeignerswhosecountryis j'?iil" a one as is born i::fi:J:l':llll'i "r"^v i.'"g 1."-5.:::h or state as^is in hostitity with the unrler the obeisance "i,"..i" Kingortherearm"i"r.,1+ii:i.:i::iL'"i,'*?::''.Y:f;r'^ fitime*::X'J'T:.ff:'l",il'1"',dti":^15::ll,""m;rym';l or war' imPres rii ii,t'"i i Keit con'm 74' 2 Kent Comm63) as under;

48.And in the Corpus ]urus Secondum ,,AlienenemiesareeithertemPorary,o''l.hasmaybecome in the enemy's p"'mitied' or commorant' friends again; * 'p""l"ify countrv ut tn" t'Jl'i? [.'"''"'p"*''":l 1ilryi"?l !\ ff"'Ht or all savage and barbarian 'trlbes nations' and who do """*t*, *tttt other commercial' t' d'Pi;R;t;r'i''"* not rec snize ih" "b"l trii;;

o ;i rntelaqonal 1;1n$,1"ffJ;, * ii has been th-1ti On the other hami'''o'tornt"ercial l"id -Y: an enemy is not a intercourse' rules with '"'pot a subiect{r:itg:H:i:;::?

) pcrson who i' uy'i'it""ii'y iration, but'",,i'ift ';.il ;i'" incrudes carries on business * ;;^Unli:J'ilJ*?ffi :":'j:l^::'::^L l.,vemment, but it does not ["r:: *:x xx; :1i:: ffi:'ir ]i ,:t*' :l**i {; tl; i,i'"i" 'r"p*'r"to.': y.:':o,;,': ;,"'il'^T lL*"r". in war' even ';'il:fl and a r i't ':;::ll'iliil;;;;;,ll:':::Y"?Ji":'T""flflT; nit moral aid and cooPeration'

statewho'dh"'J;"i;;;"*'**:*a1T1,fi iliy#lytll: of such govemment territory is not an enemy tn" t"ssation of hostilities to return t" th" Jo*-J"?

'"';iil;

3't t

has also provided us with f 49. The learned Advocate General' however in Durga as opposed to " Alien enemy'' the definition of "enemy alien" DasBasu,sCommentaryontheConstitutionoflndia(9thEd.)asunder an "enemy alien" and an "alien which shows a clear difference between enemy";

of a country at war with "Enemy alien is a citizen or subiect or subiect is living or the country i" *iitf tf-r" citizen travelling "

50.Learnedcounselforthepetitioneralsoprovideduswithsome to alien enemy' rlefinitions of "enemy alien" as opposed as under;

51.ln Wikepedia "enemy alien" was defined alien is any native' "In customary intemational law' an enemy f citizen, denizen J;;;;i;ny foreign-nation or government with which u ao'"'til 'luilott o' go'uttt*""t is in conllict and who secured and removed' is tiable to o" upp'"n"la"J'- 'e-"t'"i"etl' state of declared war'" Usually, the countrieJare h a

and treated as under in

52.In Wikepedia "enemy alien" was defined War II;

the United States during World citizens aliens were the Japanese " A well-known example of enemy l**'i"ir"Jwtrld war-Il' Many of these residing i.t ttte uttitjl "nl-'lt;;; imprisoned in internment Japanese'"a 1"pu''t"J" ;"t" alongside many camps by p'"'ia"ni'noo'"'"ii att'lttg-"Ho*u'"t', -*uitime' many JaPanese [";'fi": ^"J-ior."-n"..tit^* were not actuallv "a]iens"' *'n"'"'* as Americans ltJ;-A;;;;;

""d they held n rn"titun'litil"tt'i'p]' ;;'"ff[ citizens who were -":THffi:"

I

o.tl'v to non-American were.thousands of resident countries lrt"l't1"d'i; tttit ?t^u"tt by race- who *"r" p.o"r]iurr"a from applying for citizenship aliens '#''" *'i"" Iit""u"t declared against their based naturaliz"""l' native countrie" t}tiit"'i"t"t tiottg"a r'o^ "t""ident" to "enemy" t Italian American and alien' rr'"'"r"t""t"'i,,i""l*?1it""' plrm-aient residents^w-ere claesified as etremy American !apanese i"t"i'o'sos Italian Americans and aliens and itt"'""dl;il:h:'r" in many Americans-rvere interned approximately UO'OOO lup"nt'e the country' German Americans different tut"p' urrJtli"J across locations' were held in more than 50 dilferent Canada 1974 ro 1920 Canadian

53.In "enemy aliens" -internment in respect of who (online Source) which states as under in War Museum how they were treated during World as enemy aliens and were regarded War One;

t ,, D u r i n g t he F i rst, worr dy ii,:i:".#f :: llfl J:: ::"X"l"Xl identilied as s'szs peopre BTli,lj'i,l:1'',"'1" 3l,i'i1""''"i"'n"J . and German immigrants' "';Tr:

across " aliens", mainly ut"it'iu" ".r"-lu a network of 24 camPs' ti*:,'^"".t of states ,,Enemv Alien" was the term used to describ"' ,[]iiy'"1'i", :fi war' rrsre--- ill,S""J?if I nEst iH:';

:1" ',t'"';l ,i:

Canada during the ttre ErnPlt:-tl: Ottoman E.;i,e, the Austro-Hungarian "--i'I ;J;; '#.',i,r",',,"::"*"::Llhl};Xll:',:"il2::'J: #ffi including unemP reasons, " abide by government regulations and failing to

of definitions of "enemy aliers" as 54 We have also found a number example;

opposed to "alien enemies" ' For i Ed') defines "enemy alien" as under;

55.Black's Law Dictionary lorr' which is An alien residing or travelling in a country "Enemv alien aliens *'ni?ft tt" it a natlonal Enemy at war with the Country of may be interned or restricted on line Dictionary 56 As clefined in Collins English enemY alien in British English

( enomr 'erhen ) country with which it is [?Lr)"n o, on" country livingasinaanother result" *".,1.a viewed as susPect "i

57.As defined in On Line Dictionary'com he or fllXri"., ,"riai"g in a country at war with the one of which she is a citizen" '

t 58 As defined in the free Dictionary on line'

Def inition in online infoPlease en'emY al'ien Pronunciation: !B).

he or at war with the one of which "an alien residing in a country she is a citizen"

Dictio nary, CoPYright @ 7997, bY Random Rnndom Hous Unahridged House, Inc-, on InfoPlea

mean on line website

59.Definition in what does that

3'\s

t Definition of: enemY alien whrch is at war with h1s "An alien living or interned ln a country own country"

Read o nary /E enem more, http I what does tha fmea n.co ln / drcti alien html#ix zzb lZn UM

important' 60 The definition of Alien is also at 1951 in the definition section 6'l Under the Pakistan Citizens Act Sechon 2 an ahen is defined as;

or a not a citizen ol Pakistan "ahen" means a person who ls commonwealth citizen" a Britannica; (on line) 62 Definition of Alien in Encylopedia law' a foreign -born resident "Alien, in national and rnternational or na tur altzadon and who rs not a citizen bY virtue oi Parentage count4/ of another who is stil1 a citizen or subject "enemy alien" vanous definitions of 63 lt would apPear to us from the rn the State

(a)who were not nationals that these were a class of persons at war wrth were residing and (b) their State of Origin was rn which they who may they were resrding' This would include persons the State where wrth of the State but had their origins in the State have beetl nationals whichtheStatetheyweleculrentlyresrdinglnwasatwar.

War Two such enemy aliens even 64 In such srtuatrons during World or a crime were often placed in internment rf they had not committed to the fear of the State L centres durmg the course of the war due detentlon of origrn were resrdrng that they might support their state r, wrrich they of *"'" I""di''g ln was at war with ttuough acts who the State they esplollage, sabotage etc '

be the internrnent of )apanese

65.The classic exampie would in Ame,ca of Japanese origin living Ame.cans or Japanese Ame.cans USA went to on Pearl Harbor and where after the after the Japanese attack were sent Most of these Japanese/ American enemy aliens wal with iapan to internment centres

t on "Enemy aliens; Treatment of

66.This is amply set out in a PaPer during World War II in State

U'S'

the Japanese-American Internment Heen 2014 (on line source) History Standards". Oddvar Holmefiord -refers overviewofthelnternmentofJap.aneslAmericans.The n'*"iitott" to' the involuntary internment of |"pu^"'u ' 120'00o individuals of |apanese incarceration or uppi"Jtut-"ty order e065' from ancestry "na"' r'""iilli;i;;;i;; Executive -both' alien-rorn lssei (first 7942 to 1945' The ffi;;;;

Nisei (second generation' eeneration born in Jril;;;i ti;iren *t" United Sta-tes)' Both grouPs' i.t.s.-bo," ttutt"uti'"ittiiii""l *"11 interned without due if they resided ;;'w;'ou"' process. Ett"*rt"t".

"" j"i't;;;;# -o"atment and in the Hawaiian Islands of ]apanese Americans was few were ittt""t"o''ii" ,,enemv,, population group. unlike that or uny oit.", wartime Italian aliens were also interned' Although ton-titi'e'tt"i*""1"a small in comParison to that I the total numbers "t';"*';;;i;were iis cltizens other than the Nisei were the Issei rt"tttu'*o''t"]nto of Pearl Harbor' only 1% of interned o"'pit"'iI'I*;t;J; en interned' as apposed to the l'{awaiian Japanese ;;*tt;;t;;t; set masse internme"t *'ii" w"'t Coast lntemment camPs were the intelol'-lnost sharing up in locatio"' t'nt""gttcl"i the with extreme temPeratures' Intemees "fi;;#;i;;iu"""t-r'*a pt"'"-"aittons and overseenand by SuT{ w'ith were housed barbed wire' machineguns '" ;;t;;;;;;

by watchtowers "^'l service at the start of the war' a Despite being b'"";i;;iita'ry reasonably manPowercno*ug""r"uf i;' ;;; ;" reskictions and a the U S' military large share *tt i^t"til"'"t'i' t"ttit" t" 'ull'|"tthe US Supreme "f at some poittt at"i'"']t'ttl"*ll' rn's+: and't9M' tn"^'"t"rnment by finding Court upheld arir"'"""i'pt*"io* "r vacated bv federal courts in them constitutio*i'""'ait" ttt"t were the internment- *1t ttt" government's the lg80s Offici;lfy' and sabotase' from )apanese reaction to trre tntea't'oi'""pio"'g" Americans rotto*i"'! il"]I;;;;:; lt*I.:i ieart Harbor' rhe is that, the internment was the senerai consens" t;?;tiJr,I,"ver' prejudice i" tt'" press' racial Iesult of wartime h;"';#";;;t;iu'tv from all a iailure of leadership stretching b"'k h"ii ;;;;tl'v-""u (bold added) three branches ot tie U S gout"t*"nt

-L

living in Britain when

67.Like wise the treatment of German citizens out war in World War Two is amply set Cermany and Britain were at source) Michael Maynald (online below in "My war service" by "Mv War Service Part 1 Bv (4ichael MaYnard

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Michael *uYnu'd!

t People in storY:

Michael MaYnaro "'"-'- of storY:Belgium' Holland' Germany Location f"gfu"a, Background to story:

ArmY Article ID:

A 5350303

Contributed on:

27 August 2005

Ma ynard 1g4O to 7947 ' The War Service of Michael

Iffifi';;*-T{"*1,"""*". continued the soverffnent had to

consir.lerthelegalpo'ition.oi"t#g**"t:='lt"::l:i,11il,-.1: l!';.1;-!^:J,nothreatto ;,ilf "iiil1l,1lY;Ji:Hii:",l'.""fi i"," ioi and could be a the country. A small '"r"gees + ootential t'hreat' ^,*;;;

set up in various parts of the country,

f":#i!l;Ti![i*:*tir:]li:i;:l;ciassirveaih B- exemPtion from ;*l'Ji:Til'''ffi"":1l::"';;";;;;

but subiect to ti"nt'cr* -- iotal exemption with the internment status of 'victim of Nazi oPPresstorloro"o reasonably well with

H",*'Jqjl"[,,',Tf ::i:[Eld?fl1'.".:lile?Tl;ili,-]:: H-ffi 1] HHitr"ill"i.'l ;;; ;;;; cood Germans" a carry-

over from the W W 1 1 -:t:^A -" ' 'R' His ut u'-U^-^ * answerg my friend Hans was classified As a result, lil l;;;;; t;r r:$i ll:,*::* ffiifi "il"ii,": TJH:; 'r-' hv the same trlbunal' keeP mY bicYcle' ;,J'J"il";; una 'o'ta Internment

rhe invasion of NorwaY' D-enm:'i* il*:[;tff.::*.t?"1fi:: |,li,igli,#;".,jllT"Jffi L"''i"i"''"'L'sotaiersdissuisea tt"l"'oi' uf c"i,,.,"Itt tytphasisers and -L as nuns, treachery "tta 'irtit similar stories - 'o*" ""'ll"'"'i1v o""' rfie i"^tiNorwegran Quisling 1H" *ut a become symPtomatic *nn "'u' ' r'i*,,i", #rl" iad become' )f[Jili:tT'"?]. out ro, *y'fllh It out pressure on the got. r- ^^--rlaino about it. The .olu.n; in our midst ""1.i',#";;;;;";:"' of invasion all .an catastrophic fall of France i.g*'lntern the Lot'. (for Ieadrng .'in" .ru ':':.1:::';'.."ille). Under this increased this pressure' t**t]]ll' BritonsY by Anthony :[:i;';iltinental tn" internment of those Dressure, the governmenl""toit"J- u'* crassiried as'B' rhus'',,;5* [1]**ffi;::il;':1:o our lodging one gy '^ "ii'] Off i." insrructed Police Forces

t:il;;;;;;;

After the falt of France Nationals octwtErr 16 ^" - 70 years of age for, to arrest all German ,

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I internmentunlesstheywerecertainthat-theydidrtotPosea senior threat' A very questit'"if"' ttii"ti"n for individual *u" utt""ay very heavy' In most cases officers whose workloaa If,i" *""* 'Better safe than sorrv'' appearing ?tl'T"*ittg i" In mv case this resulted in u'ioiit"*un il #: ;; ni*3 "r *'11 : :"*"*p: ;i:i:"['lfiT:J]:l for the. firstand onrv time HI il1',ff.ffii',I;i11,i?I],;;i"""""'ov' *ri'i"'trt" U k Everything' w1s-done on a I was locked into a police small coach i'rriY"d-*tth:-":: friendlv basis' Later tt'" *^"'J"y " us to Lingfield racecourse rn 'ffil#ilt;;ot" tt'" -"u uttatook over bv the armv as a temPorary ;H;lft;; i;i'i""" "t"" internment camP '

can be taken from the

68.Significantly, some guidance on "enemy contained a similar Article Constitution of Pakistan which ,| aliens" being Article 7 as set out below;

1955 Constitution

Articre 7 (1) No person w^:

without being in{ormed' as soon :#:T::;illf,fl:;T:iil;J:::li as.rld.v,:':::-,i;

l.l U. a"f".,a"a shatl he be derueJ the righi to consult and be arrest, nor iV f"ga practitioner of his choice' " shall be and detained it"^:,t::dy

(2)Every person who is arrested within P::i::^"f wenty- orocluced before the n"ut"'i ' ^lgititate ttt" time for the i.,,-.. hor., of such arrest' "-it:'Ji"g court of the'magisrrate' 'necessary and iournev from the PlaceJ;;;;;h? period "f o""i""i'i i'i'toay uuyo"a the said ,r., .r.'h person shall o" *i,ftora itt" authority of a magistrate' apply' to any person - (a)

(1)and (2) shall

(3)Nothing in clauses or time being is Jrr}rny-"rt""iot iu) *ho it "rrested *ho for the

cletained under any lu* p'o'iding ior preventive detention'

(4)N o raw .p -, idlt ::: l':::,:T:.*:.,* i#'#:Hj'ft'*: I l;:"#:iff {li"j1tx%H,a;i***r'::',ff ,:T;1*:'; ot thre of the said Period ,rffi.i"r,, .u"" for such detention' Expranation:, "'nl:'11:::^ :::",H5':fi'::", t*T'^.:::'l;

bv the l'rXl"i;;;;;i"g or p""o"' app^ointed ffiI';:.["-'ffiPakistan' cn,"i'i,un" or tt :if ;i:",'",:i"i"##ilH": ;:f; or the High uv^in" Chier ]istice :"[i,Ii#i,i::':l'":#i#a the Province' Court for

) w h e n . ly p.,,: :l L,- HT:" "*'Jiiff

under any law Providlng J:.1T::T::,:i.:

I Ior Prsvsr""" --' fr

may be' comlnunicate to such r making the order shall, as soon as has been made and shall person the grounds ott *ttitl"ttl""o-t-t1Jr afford him the earliest oppo'*"ity of making a rePresentation against the order:

to any slch 9rler,1a1 refuse Providecl that the authority making disclose facts which "th ""f'totiii toi'idttt it to be against the public interest to disclose'

8 aleo seemed to

69.Likewise the 1962 Constitution at Article provide no relief for enemY aliens;

Detention' "8. Safeguarcls in Relation to Arrest and 1. A law authorizing th; ;;;;;t Jttention of ?ersons should ensure ' the law;

;il; f"r.o,' utt"""t"a or detained underhit detention at the (a) Is informed ;h"";;;t'{ i1"-tl^t-' 'f as soon thereafter as is -J time he is arrested oi detained or Practicablei within a period of

(b)Is taken before the nearest Magjstrate crt detained' excluding the twenty-four ht"; "ft"; t'Jit ut'""t"i the Magistrate;

time necessary to convey him to of that period (c)Is released from custody at the -expiration rizedby a Magistrate; and unless further d";;;tt*;;;;tht represented and defended

(d)Is at liberty to consult' and to be fY u legal P"ititione' of his choice' or

2.This Principle does not aPPly to.a t": *11:t]1i11the artestbut fo' pttuttttive detention' detention of enemy ufit"' oliti'iai"g Iaw providing for Preventive detentioni of the security of Pakistan

(a)Should be made only in the interest or of Public saletY; or the Govemor iftoria that (except where the President tUl "n,'re the security oI Pakistan' directs of a Province, i" tt'" ini"tt"'t of the law. is informed of the otherwise) a person i;;;;;;"t his aeteniion at the time he is detained or as soon srounds of t t"h"r"ufte, as is Practicable) ' under the law (c) ancl Should tt'li'u''p"rson is not detained "n"'" without the authority of a for a period long"t t# tntt"" ""tttt Boari consisting of ;

- of the

(i)Where the law is a Central Law .a Judge by the Chief Supreme Ccl"i' *ttcl 'ftult b" ttorninuted and anothe' senior officer in the Justice of tli;';;;;i' be nominated by the service of f"xiJ*,'*hrl shall President; or (i,) 'd:;'t';""ir* is a Provincial Law - a ludge of'the who shall be ii*"fl C""t, of the Province concemed' Llll"*,J o, iit ct'i"r Justice of that court' and :#;"?;","Jt trit'* the service of Pakistan' who 4l

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Government of that shall be nominated by the t Province"

in alien" was also incorporated

70.The same wording of "enemy with of the 1973 Constitution which is the Article dealing Article 10(9) in and as mentioned earlier remained untouched arrest and detention each Article the cross party Ilabbani Committee went thlough 2010 whilst made to consider Potential amendments and indeed of the Constitution to the Constitution yet Article nutnerous signif icant amendments Constitutional today even after further remains a part of our Constitution Constitutional amendment' amendments following the 18th set had become defined as

71.Thus, in our view since "enemy alien' used in + World War Two and such definition had been out by us during in 1947 a Colony Prior to partition Britain of which India was formerly of the gives a strong indication that the original framers which the expression "enemy alien" as found in the constitution intended that alien as ueed was based on the definition of enemy 1956 Constitution Two' which wae once and applied by the British during World War in the 1962 Presidential Constitutional and the 1973 again reflected Pakistan today Parliamentary Constitution $'hich Governs to be fulfilled definition of enemy alien the first limb 72. As per our this stage the the petitioner must be a non national At would be that a pakistani of sindh,s argument fails as the petitioner is Government a person who had lost allegiance to a not persuaded that national. We are him of that National unless the State itself had stripped State was a non The in so far as it relates to the petitioner' the case nationality which is not Baluch people and L might also be fighting for more rights lor the petitioner that he is an secession from Pakistan which indicates not necessarily to an who is seeking certain demands as opposed insurgent or terrorist which links him or the alien. We have also not seen any material enemy BLA to another State to be the second limb of the test would need 73. Even otherwise war between there would also need to be a State of satisfied. Namely, neither is Pakistan and another country' In the current situation Pakistan international armed conflict nor any declatedU involved in any declared

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the lead to the combatants having t internal armed conflict which might the Geneva Conventions regarding benefit of at Ieast some parts of the groups customs of war' Pakistan in our view today is fighting Iaws and whichcanbedescribedasinsurgents'terroristsand/ormilitantsmainly security forces are ably dealing of an internal nature which the State's with.

Terror" was coined after Osama

74.ln our view, the Phrase "War on Al attacked the World Trade Centre (WTC) in the Bin Laden and Qaeda into such USA on September 11 2001 by flying commercial jet airliners of the WTC and the loss of around buildings which lead to the collapse 3,000 precious lives This resulted in a US lead coalition through its right of self defense under International law retaliating I exercising aBainst the Taliban regime in Afghanistan who refused to hand over

osamaBinl-adenandotherAlQaedamemberswhotheUSAheld within and who were taking refuge responsible for the attack on the WTC Afghanistan refused to surrender' their territory and whom the State of has been continuing for the last 19 years This so calletl "War on'Ierror" was to fall within this so called "War on Terror" and thus if the Petitioner having been acquitted of the be released from iail despite he may never some 14 terrorism for which he was originally charged offenses including years ago

question whether the con-flicts in lraq" Syria' 75. It then begs the or sporadic terrorists attacks in France' the UK' Yemen, Libya, Somalia Terror" as in the ambit of the "War on Turkey, Nigeria etc all fall within kind of unconventional this duy and age usually some place in some Part of the World which militancy/ terrorism is taking L which if deemed to be a part of the kind of terrorist element involves some ending war with so called "War on Terror" may lead to a so called never in black holes without any kind of legal so callerl enemy aliens being left been trial indefinitely which we consider would not have relief without 1962 and'1973 our Constitutions in 1956' the intention of the framers of since our current the insertion of Article 10 (9) Ttus is more so tl'rrough attaches democracy under the 1973 Constitution form of Parliamentary individual' due process of law' great weight to the freedom of the rights and the rule of law which are the hall, enforcement of fundamental

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a harsh We are also not convinced that such marks of any civilized society \ to an aggrieved which gave no legal relief interpretation of Article 10 (9) but which is secular in nature party would sit well in a Constitution blended with Islamic PrinciPles' in manner o{ warfare may have changed but back 76. Now a days the to "enemy our first Constitution was framed the only reference 1956 when had refetence to' the framers of our Constitution would have alien" which ,,enemy aliens,,were defined and treated as mentionerl above, was how Two and thusin our view when the by the British during World War it was the was included in the 1956 Constitution term, "enemy alien" that the rcrm "enemy alien' Constitution intention of the framers of that interPreted and applied by the British was to mean the same as it was -t meaning of "enemy alien" has War 'lwo and such during Worlcl Constitutions and today where the term and1973 continued into the 1962 10(9) Even when the far reaching 18th remains unchanged in Article as mentioned earrier, was promulgated in constitutionar amendment, for almoat 9 ycars the so called "War on Terror" had been raging 2010 and Article 10 (9) of the felt no need to change the wording of Parliament keeping in view which it could have done had it so intended Constitution since 1945 which the world was now nature of war fare the change in the the so called "War on Terror" and thus the original clealing with in 2010 in of o{ the Constitution in 1956 as to the meaning intention of the framers earlier in this in tact today as interPreted by us Article 10 (9) remains

order the petitioner is not an considered view that

77.Thus, we are of the contemplated under Articie 10 (9) of the Constitution "enemy alien" as I the Petitioner' is not applicable to and as such Article 10(9) as be considered as an "enemy alien" 78. ln our view a Person might a non Pakistani citizen its meaning if he was per our interPretation of was in a declared war with another State when Pakistan living in Pakistan was at war with was from that other State which Pakistan and that Person the as a spy or a saboteur who was assisting and could be consirlered such a situation in its conflict ugui"'t Puki'tu"' For example' enemy State 1965 and 1973 wats with India rt ar.lndian, may have arisen if a"i"g ti"

39i,

forces against and assisting the Indian F national was residing in Pakistan then in our view who lndia was at war with but even the State of Pakistan that person legal approach would most likely be to intern the proper evidence civilian against whom there was no cogent especially if he was a case may be' with the enemy or try him as a sPy as the of collaborating

by The Actions (in aid of Civil by our findings

79.We are fortified under' 2011 (the Regulations) and Rules made there Power) Regulation war during the height of the so called 80 The Regulations were issued inte$ity of Pakistan was under onterror and even when the territorial Its Preamble reads as under;

threat bY terrorists/ militants

in aiit of ciuil pouer ia the Eeiletallg + " to woaiile for Action Adminis tere d Tib al Are s'

W}IEREASthereexistsgraz.seandunPrecedetfieil'tfueattothe i;;,;;';;,;;;s;*'t'*:i",ii!,ifr,,i::;:;,'1"fi:f #:tr!' elements, uhointend to assert .un'u.wt-:::::::;;-;,,""i1 fotces haae 'ii'i,'iii',,,"0,:1*bi!"^.i!'iliflo,{iif iit1,"lli"",. been tequisitioneil to carry ot Armeil Forces tn AND WHERE AS continuous stationitls of ,,iscrean'ts in the territories, that haue o"X' i'i'i:'i" - ii'ni' and it is' nroa incialtv A dministat ia i' T;;;;; ;";'' l:"'::y '*iiri"rr,"rhwratiae.thatar'P''!i;i":;;::i:":;#r"ttr;;'!':' take cefiat: n:e:'-:::-17"^" Armed Forces to continuation o1 tn, actions in them during "lf .tne ;;:;;r;;;;; it'tenins ',1,'i"i-,,,tr"i"i'';*1,'::i,i!i:-'i;;"';,:.ffi Forcis carryout the said oPe ^::,:mli,l!l!^*'o iy:!;ff ' i::,"Y:::,::A"::;,#:i::":;,t:1:,:;i:ffiyl'i::f ANDWHEREAstoi!ar11i'l",ii?,'liir";itr{ii;:::,"ff trtr; I i;i:!;:,';::i"^#'!"i:;;tri;,",!:,!i,iii#!:,i*ir:4;r:.; Pakistan uhilebeing suble

ifihe!t,!,i'*ri'"f i,!'i,',7iii,i-;f ,i:;;ifX,'J;;Y;:i", President is Pleasect namelY:-

1.short titk, apltic:a1,fr Rewlation maY be 't::"::#Tff";TTt'[,,t'o"T]f, atizte rib at r;:;i' A itminisff , i: ;:^1rT'i; * * tu the F e iterattv Areas of Pakistan ileemeil to haae at once anil shall be ? It shall come into fotce

'r'rlu,i')1r"i 1io* in' r' r'bruau 2oo8',

do the Rules made there under

81.Significantly the Itegulations and for words "enemy aliens" but use the words "miscreants" not use the made those who fall under the ambit of the Regulations and the Rules per Preamble' also covered Persons' as there under. Significantly, this law who were described as;

,,miscteantswhozoercnolongerloyalandobeitieflt.tothestLte rhus' euer' ,;;";';;;;;t";;; i7 tn' u"*i nepibtic of Pakistan't' zuho hait tost his in these Regutations ^ P':;:;t;;'l-;;tnhat '^'u"s.i,,*t{eiryiitny:'":*i:,t:'J;o:;;"r;ii1{i,"::,1""';rX atim", Lr d #' :,::;:i'';r: "J:r;;.o {:;i;' oi"' n*'ti,,i* ' " his o

allesiance to the State '"'i"i't*""i in this ris.pect otherutise in woukl h";;-;;;;;"*t as an';enemy aliel' and the-Resulations 't he * ayirtirt, 70(9) ol the Constitution "Miscreants" are defined as

82.At Section 2(1) of the Regulations under;

of "miscreants" means any person who or may rtot be a citizen oi has committed any pakistan and who is intenail-g to commit offence under this Regulation '"nd intt'd"t a terrorist' a foreigner' a what so ever rurmes #;;;;;; o. u g"'o'p of such persons by called;

and "miscreants" instead

83.The non use of the words "enemy alien" in its wisdom intended to include in our view was because the legislature Nationals of legislature as well as non Pakistani Nationals in this piece the definition of "enemy alien" not be in consonance with which would Perhaps the rationale behind this who had to be non Pakistani citizens' who were carrying out a large scale clefinition was that the miscreants the mainly limited to FATA as Per insurgency and terrorist activities I Regulations included Pakistani nationals who had to be brought within

the net of the Regulations' for legislation also provided

84.Again significantly' this piece of right for those miscreants who were caprured with a internment centre's else might be sent up for trial and of review of their detention or who today there are with in accordance with the law and thus even proceeded or in Pakistan whereby even suspected terrorists no legal black holes Article of law as guaranteed under militants are provicled due process 10(A) of the Constitution

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85.We are further forti-fied by our findings in respect of the definition Constitution by the now of " enemy alien" as set out in Article 10(9) of the Iapsetl Protection of Pakistan Act 2014 (Act X of 2014) the Preamble of

which reads as under;

of war or "An Act to provide for the protection against waging of Acts ;;.t;i;' against Pakisian and the prevention trial of threatening the security oi fakistan and for speedy .ii"^""t flff in the schedule and the matters connected

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therewith or inc"idental thereto"(bold added) at (d)

86.At Section 2 of the Act in the definition section it defined

"enemy alien" as under;

(d)"enemY alien" means a militant:- 1u) wfto'e iaentity is unascertainable ae a Pakistani' or in the itt tne foiutitv *i"'" ftu has been arrested whether by focufity *f'"1" he claims to be residing' documentarY or oral evidence; or A;;il hu" b""r, deprived of his citizenship' under ['" i';ili;. Citire"sr'ip Act' 1e51 (II of 1es1)' acquired bY naturalization;

an "enemy

87.Thus the precondition for a person to be considered Pakistani National' Perhaps alien" under this Act was that he was not a was the increasing attacks the rationale for excluding Pakistani nationals over Pakistan's borders on Pakistan by non Pakistani nationals crossing either retreating back to the and carrying out attacks in Pakistan antl then sanctuary of their own country or staying in Pakistan to carry out further

terrorist activities

defined as under;

88 At Section 2 (0 of the Act militant was I "militant" means any Person who: or

(a)wages war or insurrection against Pakistan' Pakistanl its citizens' the armed forces iUl .uii, arms against or civil armed forces; or

(c)takes up, advocates or encourages or aids.or abets the a violent struggle raising of u'^' o' *ugi"g of w-ar or against Pakistan; or tlireatens or acts or attemPts to act in .u . rn*"' t"'o."ira].[,"io'ih" t.tt integity or defence of Pakistan; or '"t"lty' to commit any schedule o{fence;

t"l ..--rtt or threatens and includes:

/i\ a Derson who commits any act outside- the \'''l the ;";u"ty of Pakistan for which he has usedsuch soil of Pakistan for preparing to commit

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under act that constitutes scheduled offence such i iltr;.; uiJ-,n" iu*t of the state where .ii""." frrt been committed' including an act or of aidins or abetting such offence; (i0 ;ffi;:;,e"i"li*n"* there are T*'"1b1: or tn ;u,'Jt thatie acts under the directions of :#;;;;;;;;iracY with or in furtherance the designs of an enemY alien;

by Parliament long after the so

89.This Act which was considered and and would have been discussed called "War on Terror" had started alien" as uses the definition of "enemy debated from all angles yet it the Petitioner from the definition under found by us which would exclude in its 10 (9) as the Petitioner is a Pakistani national Parliament Article of war fare would have been well aware oI the changed nature wisdom -l where the enemy was usually easily since World War One and Two and emblems to today iclentifiablettuough the use of different uniforms as belonging to any particular where often the fighters are unidentifiabre distinguishing uniforms or emblems but or cohesive group and wear no adopted the traditionally ueed and deliberately and intentionally nationals' as being non Pakistani British definition of "alien enemy" of how Parliament intended

90.To us this is the clearest indication to be interpreted as used in Article 10(9) of the the words "enemy alien" the World War Two cases also eetablished Constitution. This Act as with category of enemy centres for those who fell into the detentiory'interment black holes- alien and did not create legal times but we Pakistan is passing through challenging 91. In our view the scoutge of at war but rather we are having to deal with are not have passed I militancy like many other countries and we terrorism and such miscreants' appropriate laws to deal \'vith it is always a careful and fine 92. In this so calleri "War on Terror" time ensuring the security of the State and at the same balance between which are civil liberties ut'O t''nt" of the citizers of the State ensuring by the Constitution and it is the role/ obligation guaranteerJ and Protected abuse or safe guard its citizens from executive of the Judiciary to iealously times' over reach of Power in such t

"War on Terror" in its i 93. Each State has responded to this so called circumstances' needs and own way depending uPon its own particular detention extremely harsh preventive environment. Some States through being detained for years on end at laws which have lead to Persons trial and the US Patriot Act prisons like Guantanamo Bay without to the use of example we have resorted some through less harsh laws' for militancy internment centre's where the worst instances of terrorism and internee to place which still ensure the due process rights of the has taken Parliament in its wisdom has a large extent and in recent times the concept by not renewing the same abandoned under the Constitution black terrorist or trial by military courts even for the most hardened iet of observed.

to whom even minimum due processes standards were miritant 2012 the { UK currently under the Protection of Freedoms Act whilst in the detention period allowed for suspected tertoriste is maximum pre charge terrorist must be released or charged' 12 clays after which the suspected legislature country through its own Ultimately, however it is for each on its own circumstances' needs and its own prevailing based As for to such laws as it considers appropriate' environment Promulgate security and the correct balance between the srruggle between striking to fight respective side will continue civil liberties the ProPonents of each over the other' for the supremacy of its own ideal was well set out in a paPer

94.This struggle to find the right balance Stan'L Rev'953 2001-2002) wherein at the by David Cole (Heinonline-54 he wrote in part as under concerning start of the so called "War on Terror" the US situation;

.INTRODUCTION

l. -.

"onJanuary.24,2020,th"-f 1i:":1J:H battrerierds or U;"H"':l:* ;rf.::*Jii;: i"riu* "''the vltgi.r", where.he *,* tried in a AIsharustan, to Alexandria, ::,:: white ;;;pi'i"s to kill Americansstrength :lii;. ;il"I 'n"tH"i"iJtll"""?t"a ro'-"it"dstut"''il}t?""ffi that "the $eat House spokesma" nl At the same his day in court" of America is he will tto* ttu'" time, the military tu' tt"liing- ri8 fotlig"-bottt Taliban and Al prisoners at a militarv b?"-itt - C'un"t"tu^o Bay' Cuba' in 8- Qaeda oot-by-8-foot chain-link t";"t' 1 widely circulat"d p*:t^-l::j: shackled' with bags coverrng f

.i"r,.,1r.f th" pri,onet' bo#d and uefore u's soldiers' :;J:;:,J;JJ "v"'' r"""ri"! onit'" groona tttut h" had categorically President George W S"tt"u";o'"t"i determined that the Guanta"l*o atiui"""t were not entrtled to the

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protections accorded Prisoners of war under the Geneva ,1- Donald Rumsfeld Conventions, and Secretary of Defense that it Jir*i.rua concerns about the'ir treatment with the assertion was better than the treatment the Taliban and Al Qaeda. accorded had issued a their Prisoners. Two months earlier' the President and other militarv order providing that Al Qaeda members ;;;;;";;;"ri- u" nlla bv militarv tribunals' in which the militarvwouldactasprosecutor'judge'jury'andexecutioner' without any appeal to a civilian court' 'Ihe different between the treatment afforded John Walker prisoners held on Lindh and his fellow Taliban and Al Qaeda the Press e;;;;;. rested on the fact that Lindh was/ as him, " the Anrcrican Taliban'" When the Attorney "i.tnu-"a GeneralannouncedthechargesagainstLindh'areporterasked court rather *n" ii"Jf. was being tried i"n an-ordinary criminal General explained ili ;"tr* " ^ili*1i"tu"'ut' rn" A$orney citizery.he was not that because Lindh was a United States subiect to the military uiU"""ft created by President Bush's could have made -t ;;;l;.' ;"; purely legal -uit"" th" presidentcitizens "military have been ,* i. lrrlz".t, suuleci to commissions; exPressly oi"a i" tribunals Uuiotl' '"a the Supreme-Court ^rili".y War II But the upheld such treatment as-recently as.World oiesident chose to limit his order to noncitizens' t'"'";;";;i."'it of how we tave responded to "tir"t"tic 17,2007. while there has been the terrorist attacks of s"pi".uu., much talk about the """a to '"ttiiite liberty for-a greater sense of sacrificed noncitizens' securitv, in practice *" n]* l"i"ttively It is often i*"i# *rtri" tetaining uasic protections forofcitizens' war.. It would be said that civil liberties u."'ti"'rirct casualty are the first to go' say that noncitizens' liberties -rr" ".."*r"*"rtoonierrorism is no exception inl ."t*", need to rethink In the wake of s"pt"'*it' 11' we plainly thebalancebetweenlibertyandsecuriiy.Theattacks,which immeasurable damage to killed more than 3,000 peopie uttd did nightmares and ,#;";; ,pirit, *.t""a"'J beyond our worst wreaking destruction and their perPetrato's' *ilde"t dt"airs in feel a profound and spreading "a"".pff fear throughoulti" "utio" We all wake and have a ,""frrllfiar seise of vulnerability in their The and reassurance correspondingly urgent neeJ--ior security ihe gravity of the threats anthrax scare that followeJ underscored and technological I we face, vividly ctemonst'"ti"g 'ttut scientific,destruction far too of mass advances have made it"i"lntt General John Ashcroft's wi.lely accessible And ;;;;';""y to this article^illustrates' many statement quoted as an epigraph a war-without an ,.r}iil;,ih" demands ir"t"ogi"g waL--trerl' ti" liberties not stand in the articulable endpoint-requi'"'ii'"i *- of wav victory' "'il;;;.,i, struck between undoubtedly a balance to be several reasons to be libertv and security, U't tti"'" are alsolib"rtv in the name of :'r:,tJ#;.;i r"T'*alv''""riiicing historic;l ,.'utt"t' *I have often-overreacted a in ffi.* ;;;;t; people- for vears at il::'"" .,i.,o:;w.'ia w" [' we imprisoned the war effort ln World War time merely for speakhg out asainst bT::.se of their ll. we interned more than rio'6oo p"'*"t:ol:ly ;:*#"ffi;;; d;;i;; ih" Cotd war' thousands or ,

to innocent persons lost their jobs, were subjected t investigations, or were incarcerated for their mere ,c-on8ressional association with are generally ttre Coit*r.,ist Party. In hindsight, these resPonses they were viewed as shameful excesses; but in their day' considered reasonable and necessary' a general matter in Second, there is reason to t(ink that as needs and times of crisis, we will overestimate our security definition Jir.orrl, the value of liberty Liberty is almost restraint by Fear' it l" -easured by the absence of control or form as "Ut"".i, iy-.t",*ra, is immediate and palpable; it takes aphysical taste in the stress, anxiety, depression, u pii i" the stomach' .bad and to p-resume that ;;;.'ii i, i""y io tate liue'rty for granted' "liberty are--not tikelv to be ;;;;;; fo',r"r, to intrude on all' especially after directed at one's own liberty' Fear affects us an attack like that of September 11' --'--'-inira, liberty and security are not r]ec:ssarjly mutuallya exclusive values in " '"'o-""'i game' Liberty. often plays' critical role in maintaining secutit! One of the iustifications for -{ ;;;;"i;g;tliti.ul f'""io-' is that a {ree people are less likely tobedriventoextremevrolence.APolitical.Processthattreats to voice their p".pf" *i,f, equal dignity and allows dissidents p:"Ud means is views and otganize to change the rules through in litzplv ro he more stabte in"ihe long run. Recent experience ;[i# ;;"i;;";i;;''}'"*n uiut cracking down on civir and may simply liberties does not ,,.."""*ii, reduct "iolen"e' wrote' the Framers ;;.;;--;t" violence' As flstice Brandeis breeds hate; knew "that fear breeds t"p'"""io"; that rePression iunal ,nu, hate menaces statrle sovernment.'' of liberty and the Understanding Uoti ift.e importance authorities and t"-pt;;;--;; restlict ii that glvernment face in times of crisis' the Framers -i; maioritieso"would democratic basic liberties from the ;;;; p.J,"., -momentary Ii"'*"i"'itv by inscriuing them in the Constitution' ;r'3i;;t';, exceptions, c'onstitutionil rights are not absolute; a But with few justice Goldberg famously put it, balance must be struct<. As pact'" "[the Constitution] is not a suicide and security Thus, while tftu t"""io" between liberty- love liberty We ,rto.trJ.,oi'u" overstated, lf cannot be denied' one to but recognize that sometimes we must -limit ""ll"""tlry, strikes that balance enjoy the other. When a i"ioc'atic society on all' one i" *'"v" ir," impose the to'i' benefits uniformly 1 ""d procese will might be relatively tt"fil"J ift"t the political ail too often we seek to ultimately achieve a ptopl'-totu"t"' But illegitimate balance, avoid the difficult t.uauoii. by srriking an in order to further sacrificing the liberties oi u 'ii"otity loup the maiority's security i"t"t"st'' ttt inl *"t" of September 11' chosen .iilr""J their elecied lepresentatives have repeatedly of the to sactifice the liberties oi noncitizens in furtherance ltave no vote' ir"*y;" p"ported security' Because noncitizens they are a "i ;;il* io a^lr""t voice in the democraticinProcess' particularly vulnerable rnirrt"ty And the heat of the and nationalist fervor engendered by war' ffi;;tii.

noncitizens' interests less likely to weigh in the balance".(bold addedf

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f 95. Thus, even by US standards' now a days' it seems that a US citizen alien,, to be interned as opposed to woulti not be considered as an,,enemy of law' being tried in an ordinary court civil liberties and preventive

96.Regarding this balance between Congress in online source l'aw Library of detention in the UK it was noted ,,Pre Charge detention for telrolist susPects ;United Kingdorrr], that;

on

" Reasons for the Extension of Pre-Charge Detention a new pre-charge detention' as noted above' is-not The extension o{ past issue and has presented itt;;

;lih - ;t^e regularly' over the been several Years to to"t'o'""y "utn ti*" I=egislation ' has facei of how to balance { introduced. The struggle tft" io*rn""t terrorist att-ack without protecting its citizens.from"tfli'tou tf a

*frffi"tu:;:,ffil*;i"';l recent Years." and

"Concluding Remarks Rights-has noted that "whilst anti- The Joint Committee on Human incremental terrorist legislation o "oi"iu*'"ach tJtry' t"':t be considered not -installment' by concerns to"'t p'liit 't"*tion senerated to the totality of such 6.,1v o. its merits O" "i"t'rr ' iJ;I,#;-"il;;q:::iil j.ff .ll*-:""'"1";ruf ii:1:1"'il:.::

to haye cals;o,i]"":;;";;".;

UK appears its cumurative effect' detention provisions'".;:'".;;":;;tJ.eguraing the potential i"t"i""d ro"'p llfl llllil* "T"'"1,i'"X,lT'I"i'ia'r"*"uv-["r"s il;;;;"v:--l"f :,t"":"fr'lmtUm'*""111XY.5':t lLifiiieiTi{l'}}"';,".T:l,':"'rT;*i$i;*nxil:";:i,}:! having powers t: :1"''"tn;;;;i; easy solution. The final

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::::ffi ;1';".1"JiiLi,'i,1H;';-'"ai"gtheissueorpre-charse political climate to detention is dependent ;;J";i;;;;t"l"and piopottionate to the determine whether th" 'i#;;;;;'u' "'" challenge faced'

rhe reception that the pro,visiST.:: t::

ilii:t',ti:i:Llfte;X'1f;:

detention have met '" tll, below the 11""""1i"a;i^ o" noted rei ect e d ;;"i"'" it., ** ::il'"',""1'.ff 1 i.Hl" il: ;;; 11 -1Y.1 now the maximum detention bv the British P"tli'*";; person must be ,rlriod is 12 days ,,n""'""#"1 iil"a"i"m"a ir,".g"a *tin "" off""t" ot rele.a.sed'

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t 97. As noted above in recent times in the UK the pre charge detention and down fuom 28 days to 72 days for terrorist susPects has been whittled period increased from 28 an attemPt to have the Preventive detention to 12 days) was defeated by days to 42 days(prior to it being reduced in attack at a musical concert Parliament despite the recent terrorist such many youngsters and other Manchester which killed and iniured terrorist attacks in the UK'

being a Pakistani national

98.In conclusion we fincl that the Petitioner in whilst Pakistan is not in a declared war does not fall living Pakistan as used in Article 10

(9)of the within the definition of "enemy alien" Article 10 (9) was without lawful Constitution and whose detention under J Constitution' authority and in violation of the the Third PDO for the

99.We have already in this order struck down reasons mentioned earlier in this order' conduct on the Part of the

100.Suffice it to say that such malafide deprecated The petitioner was convicted Covernment of Sindh is higtrly including terrorism and was by the rrial court for very serious offenses over penalty however after sewing accordingly handed down the death the Petitioner was acquitted of all 14 years in without remission iail legal State appealed the acquittal of the petitioner as was its charges. The the Supreme Court for determination' right which is still pending before system works and enables the

101.This is how our criminal iustice

PDO'S

continuous and successive public to have faith in the same lssuing in iail despite his acquittal by I a on unjustified grounds iust to keeP Person and lessen confidence in the criminal the courts only serves to undermine that it is in the eyes of the public and lead to the PercePtion justice system and fair play and that the rule of not based on the pdnciPles of equality by the Iaw which this Country so cherishes is being compromised executive authorities'

of Sindh violate the

102.Thus, not only did the Government under Article 10 of the Constitution Constitutional rights of the petitioner circumstances of the case the based on the particular facts and

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25 of the Government of Sindh also violated Articles 4,9,10(A)' L4 ' 75 and f on Constitution by issuing PDO's which lacked legal iustification based (as the the material which was placed before the comPetent authority such the petitioner has been found by us not to be an enemy alien) as 'Ihird 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 unlawful and of no legal effect however the on the IV Notification under S.11 EE ATA placing the petitioner's name ScheduleoftheATAisupheldsoastoenabletheStateasenvisagedby AIC Legal to monitor the activities of the petitioner once he is released from jail.

{ 103. In particular, especially during challenging times the courts must to the citizens ensure the Constitutional guarantees/ protections provided of this country through the Constitution and protect them from any the liberty of the rnisuse or abuse of executive authority especially when fundamental inclividual is at stake which is one of the most important protection of rights guaranteed by the Constitution Without the iealous by the courts we are the liberty of the citizen and other fundamental rights the road to anarchy no where both as a State and citizen of that State and and tyranny will not be lar awaY.

Conclusion.

and as

104.The petition is allowed The First two PDO s have expired such are no longer in the field having ceased to have e(fect on their expiry'

The only PDO which is currently operating is the third PDO referred to in is struck down as being this Order which the Petitioner is subiect to which ), the Constitution as in violation of Articles 4,9,10, 1O(A),14 15 and 25 of being illegal and issued without lawful authority' as to fall

105.The Petitioner is found not to be an "enemy alien" so his detention within the ambit of Article 10(9) of the Constitution and under this sub Article of the Constitution is found to be illegal and without lawful authoritY

106.The Notification under S'11 EE ATA referred to in this Order is shall Provide two, upheld and Prior to his release from jail the petitioner

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the satisfaction sureties of 25 lacs each and PR bond in the like amount to t- with the of the Nazir of this Court to ensure the Petitioners compliance address' S.11 EE ATA Notification as well as providing his residential mobile telephone numbers (if more than one) to the Home Secretary

of which PS he is to Government of Sindh who shall inJorm the Petitioner which the Home report to on a weekly basis and any other conditions in terms of monitoring Secretary may legally impose under S'11 EE ATA mobile phone or the petitioner including without limitation through his full co-operation' electronic tag for which the petitioner shall provide -107. After compliance with the conditionality's contained in this order it from iail unless is ordered that the Petitioner be released forthwith stay orcler passed by the { wanted in any other custody case/crime or any his release Supreme Court is currently in operation preventing under any

108.It is also directed that the Petitioner not be detained Federal Government or further preventive detention order by either the agency or any othet any Provincial Government or any law enforcement bocly without the Permission of this court A copy of this order shall be Secretary Ministry of Interior sent by the office by fax immediately to and Chief Secretary Covernment of Pakistan, Secretary Home Department Central Prison Karachi and IGP Government of Sindh and Superintendant irisons for comPliance

terms' 109 The petition stands disposed of in the above

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