Mufti Kifayat Ullah Vs Government of KP

IN THE PESHAWAR HIGH COURT. ABBOTTABAD BENCH

FORM OF ORDER SHEET

Date of Order or other proceedings with signature of order or Judge(s).

proceedings

07.12.2023 W.P.No.874N2023.

Present- M/S Waqar Ahmad Khan and Yasir Huda Swati, Advocates for petitioner.

Malik Amjad lnayat, AAG for respondents.

KAM HAYAT MIAN HEL. J.- Through the instant constitutional petition filed under Article 199 of the Constitution of lslamic Republic of Pakistan, 1973, the petitioner seeks the following relief:-

"lt is, therefore, most prayed that on acceptance of the instant writ petition, the impugned notification bearing No.SO (Police-l)/HD/11- 2l2020lMansefia dated 25.08.2021 whereby the petitioner was ordered to be place on Schedule-lV of the Act and the impugned order bearing No.51645- 60/DICC/AG-I|/DC(M) dated 07.06.2023 passed by the Deputy Commissioner, Mansehra refused to delete/exclude the name of the petitioner from Schedule-lV may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, against the relevant act as well as against the fundamental rights of the petitioners hence being unconstitutional, be struck down and the res ondents m lease

Aftab PS/* IIon'ble Mr. Justice Kamran Hayat Miankhcl Hon'ble Mr- Justice Muhammad Ijaz Khan

be strictly directed to exclude the name of petitioner from the Schedule-lV of the Act or any other writ, order or relief this as Honourable Court deems fit and appropriate in the circumstances of the case, may also be issued/passed."

2.Brief facts of the case are that the petitioner belongs to District Mansehra, hails from political, pious family of the locality and remained as District Naib Nazim from District Mansehra and MPA from his relevant constituency. The petitioner also belongs to very prominent, well known political party of the country namely Jamiat Ulema lslam and presently the petitioner is President of above said party and also one of the prominent Member of the abovementioned party and also member of Central Executive Committee of Jamiat Ulema lslam, Pakistan and District Ameer of District Mansehra. The respondents initially lodged fake, fabricated and cooked up cases against the petitioner just to curtail the life and liberty of the petitioner and thus conflned the petitioner behind the bars and when the petitioner was bailed out from the court of competent jurisdiction, the respondents staged a drama to further curtail the liberty of petitioner Aftab PS/* Hon'ble Mr. Justice Kamran Hayat Mianl'del Hon'ble Mr. Justice Muhammad tjaz Khan

and thus the respondents issued the impugned notification dated 25.08.2021 whereby the petitioner was ordered to be placed on Schedule-lV of the Anti-terrorism Act, 1997. The petitioner submitted an application to respondent No.1 against the issuance of impugned notification but the said application has been ignored without any rhyme and reason. The petitioner aggrieved from the impugned notification dated 25.08.2021 flled writ petition bearing No.1174-N2021 which was disposed of vide order dated 01 .06.2023 in terms that the GovernmenUrespondents will constitute District lntelligence Coordination Committee meeting and decide review application of the petitioner within seven days from the receipt of order after giving full opportunity to the petitioner to present his case before the committee so constituted. On the order of this court, the respondents constituted committee consisting upon the respondents No.17 to 22 and the petitioner duly appeared before the above committee and proved his excellenUnoble character but the respondents straightaway refused to delete/ exclude the name of petitioner from Schedule-lV vide order dated 07.06'2023, hence, this writ Aftab PS/* Hon'ble Mr. Justice Karnran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Khan

petition.

3.Comments were called from the respondents No.13, 14 and 16, which were filed by them.

4.We heard arguments of learned counsel for petitioner as well as learned AAG and perused the record with their valuable assistance.

5.The available record reflects that the name of the petitioner is listed in the Fourth Schedule of Anti-Terrorism Act, 1997 vide Notification No.SO (Police-l )/H D/1 1 -212020 lMansehra dated 25.08.2021 and he earlier filed writ petition bearing No.1174-A12021 before this court, which was disposed of vide order dated 01.06.2023 in terms that the Government will constitute District lntelligence Coordination Committee meeting and decide review application of the petitioner within seven days from the receipt of the order, after giving full opportunity to the petitioner to present his case before the committee so constituted. ln pursuance of the said order District lntelligence Coordination Committee was constituted, where the present petitioner appeared, but in the light of the recommendations of the District lntelligence Allab PS/* Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muharnmad Ijaz Khan

Committee in its meeting dated 07.06.2023, it was decided that name of the petitioner may not be deleted from the Fourth Schedule of Anti- Terrorism Act, '1997.

6.The name of the petitioner has been placed in Fourth Schedule of Anti-Terrorism Act, 1997 in terms of Section 11-EE vide Notification dated 25.08.2021. The provision of Section 11- EE empowers the Federal Government to enlist a person as proscribed person in Fourth Schedule if the Government feels that there are reasonable grounds to believe that the petitioner is involved in the offences mentioned in Section 1 1-EE of the Anti-Terrorism Act, 1997.

7.ln the instant case, the respondents have failed to provide any valid reason or justification for placing the name of the appellant in Fourth Schedule, whereas the only evidence available with the respondents is that there are many criminal cases registered against the petitioner, but perusal of the record reveals that the petitioner has not been convicted in any of the criminal case, rather in most of the cases, he has been acquitted of the charge, therefore, there is no justification with the respondents for placing the name of the petitioner in the Fourth Schedule Aftab PS/* Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Khan

of Anti-Terrorism Act, 1997. For ready reference, the provisions of Section 11-EE is reproduced as under:-

"11-EE. Security of good behavior- -(1) The Federal Government may, by order published in the official Gazette, list a person as proscribed person in the Fourth Schedule on an ex-parte basis, there are if reasonable grounds to believe that such person is_

(a)Concerned in terrorism;

(b)An activist, office bearer on an associate of an organization kept under observation under Section 11-D or proscribed under Section 11-B, and

(c)ln any way concerned or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism or acting on behalf of, or at the direction of, any person or organization proscribed under this Act.

Explanation. The oPinion concerning reasonable grounds to believe may be formed on the basis of information received from anY credible source, whether domestic of foreign."

L From the above, it becomes translucent that to proscribe a person, the State has to demonstrate that he is involved in cases under Sections 6 and 7 of ATA, 1997 or being an office bearer, activist or associate with an organization notified in terms of Section 1 1-B for proscription of organization under the Act by the Federal Aftab PS/* Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Khan

Government or he being member of the said organization is under observation in terms of Section 11-D or he is involved in terrorism or sectarianism. ln the instant case, the respondents have failed to place on record any material to show that the petitioner is a member of the proscribed organization or involved in terrorist funding. The respondents have failed to justify any ground which made the basis of notification dated 25.08.2021 for placing the name of the petitioner under Section 11-EE in Fourth Schedule of Anti- Terrorism Act, 1997. ln the case reported as "Province of Puniab and another v. Muhammad Rafiq and others" [PLD 2018 SC 1781 it has been held as under:-

"The ultimate object and Purpose of such act is to terrorize the society but in ordinary crimes committed due to Personal vendetta or enmitY, such elements are always missing so the crime committed onlY due to Personal revenge cannot be dragged into the fold of terrorism and terrorist activities."

9.ln the case reported as "Ghulam Hussain and others v. The State and others" (PLD 2020 SC 6t), similar view has been taken by the Hon'ble Supreme Court of Pakistan which is reproduced hereunder:--

"ln cases of this nature, "mens-

Aftab PS/+ llon'ble Mr. Justice Kamran Hayat Miankhe I llon'ble Mr. Justice Muhammad ljaz Khan

rea" is essentially with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the State, the State lnstitutions, the public at large, destruction of public and private properties, make assault on the law enforcing agencies and even at the public at large. The ultimate object and purpose of such acts is to terrorize the society or to put it under constant lear while in ordinary crimes committed due to personal vengeance/blood feud or enmity, the element to create fear or sense of insecurity in the society, public by means of terrorism is always missing."

10.ln view of the above, the pre-requisites for placing the name of the petitioner in the Fourth Schedule have not been fulfilled and it seems that the impugned Notification is unreasonable and has been passed without application of mind, whereas, under Section 24'A ol the General clauses Act, the public functionaries are bound to exercise jurisdiction in good faith and in a reasonable manner. Reliance in this regard is placed upon the cases reported as "Muhammad Nadeem Arif and others v. lnspector-General of Police, Punjab, Lahore and others" (201 1 SCMR 408), "Capital Development Authority through Chairman and another v' Mrs' Shaheen Farooq and another" (2007 SCMR 1328) and "Mian Ayaz Anwar v. Federation of Aftab PS/* Hon'ble Mr. Justice Karnran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Kha+

Pakistan through Secretary lnterior and 3 others" (PLD 2010 Lah 230).

11.Article 4 of the Constitution of the lslamic Republic of Pakistan, 1973 stipulates that every citizen, wherever he may be, and every other person for the time being within Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law. ln particular, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law, and Article 9 commands that no person shall be deprived of life or libe(y save in accordance with law whereas, Article 10 provides safeguards as to arrest and detention' Articles 9 and 10 are contained in Part-ll, Chapter- I of the Constitution which relates to Fundamental Rights. ln "lsmaeel v. The State" (2010 SCMR 27), the Hon'ble Supreme Court of Pakistan observed that the rights guaranteed under Articles 4, 9 and 10 are sacrosanct and jealously guarded by our Courts.

12.KeePing in view the facts and circumstances of the instant case, this writ petition is admitted and allowed, the impugned Notification dated 25.08.2021 is hereby set-aside with a Aftab PS/* Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Khan

direction to the respondents authorities to remove the name of the petitioner from the Fourth Schedule of Anti-Terrorism Act, 1997 immediately under intimation to this Court.

Before parting with the judgment it is important to note that in view of Sub-section 3-A of Section 11-EE of the Anti-Terrorism Act, '1997 the petitioner was required to file an appeal but inadvertently he filed the instant writ petition, therefore, in order to secure the ends of justice we deem it appropriate to convert the instant writ petition into an appeal filed under the referred section of law.

Announced

J

Aftab PS/* Hon'ble Mr. Justice KarEan Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan