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Petitioner: Ahmad Omar Sheikh and 3 others VS Respondent: Government Of Sindh through Chief Secretary and 6 others
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Amjad Ali Sahito Title:Ahmad Omar Sheikh and 3 others vs Government Of Sindh through Chief
Secretary and 6 others Case No.: Constitutional Petition No. 3507 of 2020 Date of Judgment:2020-12-24 Reported As: 2022 YLR 217 Result: Petition allowed Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---The concept of liberty has been contextualized in the case of Siddharam Satlingappa Mhetre (AIR 2011 SC 312) as follows; "Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. This is why "liberty" is called the very quintessence of a civilized existence. 2. The petitioners have challenged three separate preventive detention orders which have been issued by the Government of Sindh for a period of three months each one after the other except that the third preventive detention order was issued prior to the expiry of the second preventive detention order is stated to be in continuation of the second preventive detention order and a Notification issued by the Government of Sindh placing the petitioners on the IV Schedule of the ATA under various sections of law and in effect contended that such orders and Notification should be struck down as being illegal and issued without lawful authority on account of amongst other things mala fides and the fact that the Government of Sindh failed to satisfy itself of the need to issue these orders/Notification on an objective assessment on the material which was placed before it for consideration and that the petitioners were not "enemy aliens" within the purview of Article 10(9) of the Constitution. 3. The brief facts of the case are that petitioners (1) Ahmed Omar Sheikh son of Saeed Ahmad Sheikh (2) Fahad Nasim Ahmed son of Nasim Ahmad, (3) Syed Salman Saqib son of Syed Abdul Rauf and (4) Sheikh Muhammad Adil son of Abdul Shakoor were tried by learned Judge, Anti- Terrorism Court Hyderabad Division and Mirpurkhas Division, Hyderabad in Special Case No.26 of
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2002 arising out of Crime No.24/2002, under sections 365-A/368/302/109/201/120-A/ 34, P.P.C. read with sections 7-a, 8(a)(v)(c), 11/A(a)(b)(c), 6(2)(b)(c)(e)(f), 11/H(3-4), 11/V(I)(a)(b)(2), 11 /L(a)(b), 7-(a)(b)(2), 11/H(2)(a)(b), 11/W(1)(2), 7 of the Anti-Terrorism Act, 1997, Police Station Artillery Maidan, Karachi (South). After their trial vide judgment dated 15.07.2002 the petitioner namely Ahmed Omer Saeed Sheikh was convicted and sentenced to death under sections 365-A, 302, P.P.C. read with section 6(a) of the Anti-Terrorism Act, 1997 and section 120-A, P.P.C. The other petitioners namely Adil Sheikh, Salman Saqib and Fahad Naseem were sentenced under section 7 of the Anti- Terrorism Act, 1997 (ATA) to suffer Life Imprisonment. They were also sentenced to pay fine of Rs.500,000/- each. In case of non-payment of fine, the petitioners were ordered to suffer sentence of RI for five (5) years more. The court directed all the four petitioners to pay jointly a sum of Rs.20,00,000/- (Rupees twenty lacs) which shall be given to the widow of Daniel Pearl and also to his orphan son. All the above sentences were ordered to run concurrently. The appellants were extended the benefit of section 382-B, Cr. P. C. 4. The offenses for which the petitioners were convicted and sentenced essentially revolved around the kidnapping for ransom and murder of Mr. Daniel Pearl under the Anti-Terrorism Act 1997 (ATA) whilst he was in Pakistan who was a US national working for the Wall Street Journal. 5. As noted above petitioner Ahmed Omer Saeed Sheikh was sentenced to death whilst the other petitioners received life sentences. The petitioners being aggrieved and dissatisfied by the aforesaid judgment filed an appeal against their conviction before this court whilst the State filed an application for the enhancement of the sentences from life to death to all the petitioners who had not been handed down the death sentence. 6. This Court vide Judgment dated 02.04.2020 allowed the appeals of the petitioners and set aside the impugned judgment as slightly modified in that all the petitioners were acquitted of all charges except petitioner Omar Ahmed Sheikh who was only convicted under section 362, P.P.C. and as such was sentenced to 7 years RI and a fine of Rs.2,000,000 (Twenty lacs) which shall be paid to the widow of Daniel Pearl and also to his orphan son and in the event that such fine is not paid he shall serve a further 2 years RI. He shall have the benefit of section 382-B, Cr.P.C. The confirmation reference was answered in the negative. The application for enhancement of sentences was also dismissed. 7. Upon announcement of the Judgment referred to above the Government of Sindh immediately issued a preventive detention order under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance 1960 dated 02.04.2020 for a period of 3 months and on its expiry issued a second preventive detention order under section 11-EEE of the Anti Terrorism Act, 1997 (ATA) dated 01.07.2020 for a further period of 3 months (a few days prior to this the Government of Sindh had notified the petitioners under section 11-EE ATA under the 4th Schedule of the ATA which was a precondition for a preventive detention order being passed under section 11-FEE ATA) and prior to the expiry of the second preventive detention order issued another (the third) order in continuation of the second order under section 11 EEE of the ATA read with Article 10 of the Constitution dated 28:09.2020 for yet another period of 3 months. 8. The Government of Sindh have filed an appeal against acquittal of the petitioners before the Supreme Court assailing the Judgment of this court dated 02.04.2020 which is yet to be decided but at this point in time has not been suspended by the Supreme Court and as such the petitioners only remain in jail on account of the preventive detention orders referred to above. 9. At this point we would like to make it clear, as rightly pointed out by the learned Advocate General in earlier hearings of this petition, that in deciding the petition in hand we have no concern with the appeals which are pending before the Supreme Court since they both concern separate areas of law. Namely, the legality of an appeal against an acquittal before the Supreme Court and the legality of preventive detention orders issued by the Government of Sindh before this court. This
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petition only concerns the legality of the aforesaid preventive detention orders which we shall decide through this order. 10. Learned counsel for the petitioners have contended that immediately upon the petitioners being acquitted by this court on 02.04.2020 the Government of Sindh with mala fide intent issued the first Preventive Detention Order (PDO) dated 02.04.2020 under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance 1960 based on information provided by the police which was on an objective assessm ent of such material was not sufficient to justify such an order being issued and that it was only issued in order to keep the petitioners in jail who had already served over 18 years in jail without remission which is clear from the language of the first PDO which relates its issuance to the acquittal of the petitioners by this High Court; that such mala fide intent was further illustrated by the -Government of Sindh issuing the Second PDO on the expiry of the. First PDO by which time the names of the petitioners had mala fide recently been placed by the Government of Sindh on the IV Schedule of the ATA by virtue of section 11-EE ATA on the basis of police suspicions (no agency is mentioned in the order) that if released the petitioners 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 organization which enabled the Government of Sindh with mala fide intentions to continue to detain the petitioners under the Second PDO by virtue of section 11-EEE of the ATA despite the Government of Sindh not having any evidence that any of the petitioners necessitated being detained on an objective assessment and satisfaction of the same under a second PDO and that there was no evidence that the petitioners had any association with any banned or terrorist organization. Even otherwise only the Federal Government had the power to issue a notification under section 11-EE ATA against the petitioners and not the Government of Sindh and that there was no legal authority/power of the Federal Government which enabled it to delegate its powers to a. provincial Government so even otherwise the second PDO issued under section 11-EEE was issued without lawful authority and should be struck down; that once again the mala fide of the Government of Sindh was shown by it issuing the third PDO in continuation of the Second PDO except this time under section 11-EEE and Article 10 of the Constitution for a further 3 months with the sole purpose of keeping the petitioners behind bars forever despite being acquitted of the terrorism and other charges against them and as such since all three PDOs had been issued on account of mala fides by the Government of Sindh, and as there was also insufficient material placed before the Government of Sindh to legally justify the issuing of the 3 PDOs on an objective assessm ent of the material placed before it all the three PDOs should be struck down as they had been issued malafidely and without lawful authority as there was insufficient material available for the Government of Sindh to have lawfully issued them; that it was well settled that the petitioners could approach this court in a habeas corpus petition under Article 199 of the Constitution for the release of the petitioners before moving the review board under Article 10(4) which in any event had been denied to them by the Government of Sindh by relying on Article 10(9) which in effect classified them as "enemy aliens"; that none of the petitioners were enemy aliens as they were all Pakistani citizens and Pakistan was not in a declared state of war with any other country and as such their dentition under this pretext was both on account of mala fides and without lawful authority; that for the above reasons the three PDOs , the petitioners' Notification under section 11-EE, ATA be held to be issued without lawful authority and the petitioners be declared not to be enemy aliens and be ordered to be released from jail custody immediately. In support of his contentions he has placed reliance on Muhammad Adeel v. Government of Punjab (2015 YLR 2422), Tariq Shah v. Provincial Police Officer Khyber Pakhtunkhwa Peshawar (2018 PCr.LJ 947), Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore [(2013 PCr.LJ 312) Lahore], Federation of Pakistan v. Mrs. Amatul Jalil Khawaja and others (PLD 2003 SC 442), Muhammad Irshad v. Government of Punjab and others [(2020
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PCr.LJ 206) Lahore, Bahawalpur Bench], Dr. Niaz Ahmed v. D.C.O. and others (PLD 2014 Lahore 516), Javed lqbal v. Government of the Punjab and another (2014 MLD 1308), Syed Ghazanfar Kaznzi v. Government. of Khyber Pakhtunkhwa and others (PLD 2017 Peshawar 105), Maulvi Farid Ahmad v. Government of West Pakistan (PLD 1965 (W.P.) Lahore 135) Khawaja Salman Rafique v. National Accountability Bureau (PLD 2020 SC 456) and an unreported DB Judgment of this court in C.P. No. D-3275 of 2020 dated 21.12.2020 in the case of Mst. Aziza Naeem v. Government of Sindh. 11. Learned Advocate General Sindh has submitted before this court that this bench of this court has already made up its mind in respect of this petition after deciding the case of Mst. Aziza Naeem v. Government of Sindh in C.P. No.D 3275 of 2020 dated 21.12.2020 which is according to him on the same footing and that we should transfer this petition to another Bench of this court. In our short order dated 24.06.2020 (which is reproduced at the end of this order) we rejected such contentions in the following terms; " We called upon the learned Advocate General of Sindh to argue this matter on behalf of the Government of Sindh, however, he contended that this bench should not hear this case because this bench had already made up its mind in petition as it had already passed an order in C.P. No.D-3275 of 2020 Mst. Aziza Naeem v. Government of Sindh dated 21-12-2020 which was similar to this petition and as such this matter should be placed before another bench of this Court for hearing excluding the members of this bench. We find no ,merit in this submission of learned Advocate General, Sindh which submission is declined/ rejected. This is because the members of this bench might have 'already passed an order in a similar case but in any event if this matter was placed before another DB of this Court such DB would be bound to follow the order of this DB so no useful purpose would be served in transferring the petition to another DB of this Court. In our view the proper approach would have been for learned Advocate General to have challenged our earlier order before the Hon'ble Supreme Court. Even otherwise we are of the view that this petition is different in nature and the facts and circumstances relating to this case in terms of the material relied upon to detain the petitioners is quite different from the material relied upon for issuing the PDOs in Aziza Naeem's case (supra) and as to why the petitioners were placed under preventive detention. It is settled by now that each case is to be decided on its own particular facts and circumstances. It was also confirmed by the Advocate General himself that the proentive detention order which is currently in operation against the petitioners is going to expire on 27.12.2020 and as such if we adjourn this case on his request it will cause extreme prejudice to the petitioners as in our view based on the previous conduct of the Government of Sindh when 27th December 2020 is passed which will be in a few days' time and the preventive detention order currently in effect expires the Government of Sindh will most likely again detain the petitioners under another preventive detention order to prevent their release from jail which will lead tq this petition becoming infructuous and the petitioners being returned to square one where they will have to file fresh petitions. We also note that the material provided by the intelligence agencies which lead to the petitioners' names being subject to the PDOs has already been placed before us in chambers and reviewed by us which material was obviously different to that relied on in Mst. Aziza Naeem's case (supra). Learned Advocate General had also provided his authorities - which he intended to' rely on in this petition in respect of decisions being made on a subjective as opposed to objective basis and the petitioners being enemy aliens to the petitioners well before the date of this hearing as such the petitioners already knew the heart of his case against them. Learned Advocate General Sindh had requested for an adjournment so that he could move an application to place this case before any other bench of this court. We are of the view that he had sufficient time to make such an application after the passing of the order in Mst. Aziza Naeem's case (supra) which was passed about 03 days ago on 21.12.2020 but the same was not moved. In our view not to hear this petition today would cause irreparable harm and extreme prejudice to
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the petitioners who had already been behind bars for over 18 years without remission prior to their acquittal and have since their acquittal have remained behind bars for almost a further 09 months based on PDOs issued by the Government of Sindh". 12. When we rejected his submission for the reasons set out above through our short order which is reproduced at the bottom of this order we again asked the learned Advocate Sindh to make his submissions in respect of this petition however despite being given the opportunity of being heard he declined to make any submissions. 13. Learned D.P.G. and learned A.A.G. adopted the exact same submissions and relied on the exact same authorities as the Advocate General Sindh had made in the case of Mst. Aziza Naeem v. Government of Sindh in C.P. No. D-3275 of 2020 dated 21.12.2020 where they were also in attendance and had made their own submissions. 14. In order to give some context to the submissions adopted by the learned D.P.G. and A.A.G. we set out below the submissions and authorities relied upon by learned Advocate General Sindh in the case of Mst. Aziza Naeem v. Government of Sindh in C.P. No. D-3275 of 2020 dated 21.12.2020. "8. Learned Advocate General Sindh has contended that the correct test for determining whether the material placed before the Home Secretary justifies issuing a preventive detention order ought to be on a subjective basis although he has conceded that in Pakistan the current test is an objective one based on the Supreme Court case of Pakistan v. Mr.Amatul Jalil Khawaja. He has urged this court that on account of the changing times especially in terms of the war on terror which according to him arose in Pakistan when the Army Public School (APS) was attacked in 2011 by militants that the appropriate test ought to be the subjective one which should be made on an assessm ent of the material made by an expert in assessing intelligence material which in this case was the Home Secretary rather than judges; that a hybrid test primarily based on expertise and subjectivity be introduced to analyze the intelligence and determine whether a preventive detention order was justified especially as intelligence could never be precise and that was why it was better that it be determined by the competent authority instead of the courts especially as such issues were very sensitive and concerned national security and in this respect he placed reliance on a number of Judgments from India, Malaysia, Singapore, Nigeria and Zimbabwe in support of his contention. He also relied on certain Pakistani Judgments from Lahore and Quetta concerning, the upholding of preventive detention orders. These judgments although being only of persuasive value nevertheless have been considered by us and we have observed that by and large they are distinguishable from the present case as they concerned detention under the MPO, concerned a first preventive detention order and even a second but not a third which has been issued and challenged in this case, they do not all relate to terrorism which the second and third preventive detention orders are related to in this case and a number of the persons against whom preventive detention orders were made were already under going a trial although they may have been granted post arrest bail whereas the petitioner has been acquitted on appeal; even otherwise he contended that there was sufficient material to justify the preventive detention orders issued by the Government of Sindh based on the material which had been placed before the Home Secretary who had issued the preventive detention orders; he further contended that the petitioner fell within Article 10(9) of the Constitution and as such was an "enemy alien" and as such Article 10 of the Constitution did not apply to the petitioner as he owed no allegiance to Pakistan and was a part of the war on terror against Pakistan and therefore he had no right to a review board or to be released until determined by the competent authority. In support of his contentions he has placed reliance on Moulvi Farid Ahmad v. Government of Pakistan (PLD 1965 (W.P.) Lahore 135, State of Maharashtra v. Bhaurao Punlabrao Gawande (AIR 2008 Supreme Court 1705), Liversidge v. Anderson and another (All England Law Reports Annotated-338), Miraj Muhammad Khan v. Government of West Pakistan and Superintendent of Jail, Karachi (PLD 1966 (W.P) Karachi 282),
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Syeda Shamim Akhtar v. Government of Pakistan and 3 others . (1996 PCr.L.J 326), Aamna Bibi v. Government of Balochistan (2003 YLR 1460), Saadullah v. Secretary, Home Department and another (PLD 1986 Quetta 270), Federation of Pakistan v. Mrs. Amatul Jalil Khawaja (PLD 2003 SC 442), Syed Muhammad Ali v. Government of Balochistan (1999 PCr.LJ 1490), Malik Mushtaq Anwar v. District Magistrate, Lahore (1979 PCr.LJ 658), Part Cargo v. Steamship "Zamora" (Privy Council Appeal No.109 of 1915), R v. Secretary of State for the Home Department, ex parte Hosenball (All England Law Reports-452), Secretary of State for the Home Department v. Rehman (2001 UKHL- 47), Karpal Singh v. Minister for Home Affairs and others (1989 LRC (Const) Malaysia-648), Teo Soh Lung v. Minister for Home Affairs and others (1990) LRC (const) Singapore-490), Chan Hiang Leng Colin and others v. Minister for Information and the Arts (1997) 1 LRC -107 Singapore), Wang and Others v. Chief of Staff, Supreme Headquarters, Lagos and others (1986) LRC (Const) Nigeria - 320), H. Shah v. State of W.B. (AIR 1974 SC 2154), Mohd. Subrati v. State 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 University Press and various Terrorism laws applicable in the UK which concern pre charge detention and scholarly articles on this issue. Learned Additional Attorney General produced a notification issued by the Ministry of Interior where by the Federal Government had delegated its powers through section 33 of the ATA to Home Secretaries to issue orders under section 11-EE and as such in this respect he contended that the preventive detention orders issued by the Government of Sindh under the ATA had been legally issued. Additional Prosecutor General Sindh under instructions of the Prosecutor General Sindh adopted the arguments of learned Advocate General Sindh." 15. We have heard the parties at length, considered the record and the relevant law including that cited at the bar. 16. At the outset we would like to note that Pakistan is governed by the Constitution of 1973 as amended from time to time which is a blend of secular law and Islamic law as is made clear by both the preamble of the Constitution and the Objectives resolution at Article 2(A) which forms a part of the Constitution. When the Constitution is read in a holistic manner it is apparent that the form of Government in Pakistan is one of Parliamentary democracy based on the trichotomy of powers between the executive, legislature and the judiciary where checks and balances on each organ's powers are ensured by the other organs of the State. The Constitution through numerous of its Articles ensures the independence of the judiciary and the rule of law and the due process rights under the law of its citizens as, would be expected in any civilized society and Islamic welfare State. 17. In our view one of the key attributes of our Constitution is that it seeks to protect and safeguard the rights of the individual from misuse or abuse of executive power and does so by enshrining a number of fundamental rights which are found in Chapter one of the Constitution. It also in our view aims to strike a fair balance in respect of legal and legitimate preventive detention of citizens in appropriate cases in the interest of the State based on sound reasons and prevent such detention being misused for ulterior purposes by the executive. 18. We set out below a number of the Articles of the Constitution in material part which we consider are relevant in terms of this petition with the most important ones in our view based on the particular facts and circumstances of this case being Articles 9 and 10. Article 4 of the Constitution (although not a fundamental right as per Chapter One of the Constitution) reads as under:-- 4. Right of individuals to be dealt with in accordance with law, etc.---(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. (2) In particular-
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(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; an (c) no person shall be compelled to do that which the law does not require him to do. Chapter One of the Constitution creates certain fundamental rights. Those Articles of the Constitution which create fundamental rights and set out the consequences of their breach which we consider applicable to the petition in hand are set out as under in material part. 8. Laws…
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